Dismissed

Sri B Venkataramanappa Since Dead by His Lrs v. Sri M Muniyappa @ Hebburappa

Karnataka HC20 Nov 2020RSA/597/2006

Case brief

AI extract

What is this about?

Two second appeals against a common appellate decree that had set aside the trial court's declaration that a registered sale deed was null and void. The court held the fraud allegations vague and unproved, found no lawful possession, and declined to interfere with the first appellate court's judgment, dismissing both appeals.

What the court decided

AI extract

Sri B Venkataramanappa Since Dead by His Lrs Vs Sri M… — Property and Title | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF NOVEMBER, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO

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R.S.A.No.596/2006 C/W R.S.A.No.597/2006

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IN RSA No.596/2006

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BETWEEN:

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SRI B VENKATARAMANAPPA SINCE DEAD BY HIS LRS

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SRI PERUMALAPPA

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S/O LATE SRI B VENAKTARAMANAPPA AGED 58 YEARS

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2 . SRI B NAGARAJ, 35 YEARS.

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3 . SRI SRINIVAS, 32 YEARS

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4 . SRI NARAYANASWAMY, 30 YEARS

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5 . SRI KRISHNAPPA, 28 YEARS

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6 . MISS NAGARATHNAMMA, 25 YEARS

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2-5 ARE SONS AND 6 IS

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THE DAUGHTER OF SRI PERUMALAPPA AND ALL ARE R/AT No.167, PATALAMMA EXTN. MALUR TOWN,

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KOLAR DISTRICT- 563 101. …APPELLANTS

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(BY SRI G B NANDISH GOWDA, ADVOCATE)

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AND:

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SRI M MUNIYAPPA @ HEBBURAPPA S/O LATE SRI MUNISWAMAPPA, 62 YEARS R/O DYAPASANDRA VILLAGE KASABA HOBLI, MALUR TLAUK KOLAR DISTRICT – 563 101. …RESPONDENT

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(BY SMT. NEERAJA KARANTH, ADVOCATE FOR M/S. LEX JUSTICIA)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 15.12.2005 PASSED IN R.A.No.100/2000 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (SR.DN.) AND C.J.M, KOLAR ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 15.4.2000, PASSED IN OS No.94/93 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (JR.DN.), MALUR.

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IN RSA No.597/2006

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BETWEEN:

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SRI B VENKATARAMANAPPA SINCE DEAD BY HIS LRS

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SRI PERUMALAPPA S/O LATE SRI B VENAKTARAMANAPPA AGED 58 YEARS

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2 . SRI B NAGARAJ, 35 YEARS.

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3 . SRI SRINIVAS, 32 YEARS

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4 . SRI NARAYANASWAMY, 30 YEARS

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5 . SRI KRISHNAPPA, 28 YEARS

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6 . MISS NAGARATHNAMMA, 25 YEARS

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2-5 ARE SONS AND 6 IS THE DAUGHTER OF SRI PERUMALAPPA AND ALL ARE R/AT No.167, PATALAMMA EXTN. MALUR TOWN, KOLAR DISTRICT- 563 101.

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…APPELLANTS

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(BY SRI G B NANDISH GOWDA, ADVOCATE)

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AND:

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SRI M MUNIYAPPA @ HEBBURAPPA S/O LATE SRI MUNISWAMAPPA, 62 YEARS R/O DYAPASANDRA VILLAGE KASABA HOBLI, MALUR TLAUK KOLAR DISTRICT – 563 101.

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…RESPONDENT

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(BY SMT. NEERAJA KARANTH, ADVOCATE FOR M/S. LEX JUSTICIA)

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THESE APPEALS COMING ON FOR HEARING THIS DAY, THE COURT THROUGH VIDEO CONFERENCE AT BENGALURU DELIVERED THE FOLLOWING:

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JUDGMENT

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These two appeals arise out of common Judgment and decree dated 15-12-2005 passed in RA Nos. 98/2000 and 100/2000 by the learned Principal Civil Judge (Sr.Dn) and CJM, Kolar, wherein, both the appeals are allowed with cost and judgment and decree passed in O.S.No.94/1993 and 165/1993 by the Additional Civil Judge (Jr.Dn), Malur came to be sest aside and consequently, suit in O.S.No.94/1993 came to be decreed as prayed for and O.S.No.165/1993 came to be dismissed with cost.

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Against which, defendants/Venkataramanappa and others in preferred RSA No.596/2006 and plaintiffs/Venkataramanappa and others in O.S.No.165/1993 preferred RSA No.597/2006. Since

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the subject matter and bone of contention are common they are taken up together for common disposal.

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In order to maintain clarity, it is necessary to mention the names of plaintiff and defendants and the set of facts in O.S.No.94/1993 connected to RA No.100/2000 connected to RSA No.596/2006 are as under:

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Plaintiffs:

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M. Muniyappa s/o Billapura Muniswamappa. Defendants:

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B. Venkataramanappa S/o. Donnevenkatappa; 2. Perumalappa s/o. B. Venkataramanappa;

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Nagaraja S/o. Perumalappa

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Plaintiff –M.Muniyappa, filed a suit on 5-4-1993

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against the defendants-B. Venkataramanappa and others for permanent injunction to restrain defendants from interfering with plaintiff’s peaceful possession

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and enjoyment over the suit schedule property bearing Sy.No.69/1 measuring 2 acres 04 guntas out of which 1 acre situated at Medihatty, Malur Taluk.

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The claim of the plaintiff-M.Muniyappa is

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that, originally suit schedule property was the self acquired property of defendant No.1 and he sold it in favour of the plaintiff for countering family necessities for a valuable consideration of Rs.14,000/- and an amount of Rs.13,000/- was paid earlier to the registration in the presence of witnesses and an amount of Rs.1,000/- was paid before the SubRegistrar at Maluru. The sale deed was registered as No.1318 from pages 140 to 142, Book –I dated 15.2.1992. Defendants put the plaintiff in possession of the property and from then plaintiff has been enjoying the same. Defendant No.2- Perumalappa is the son of defendant No.1 -Venkataramanappa and defendant No.3-Nagaraja is the son of defendant

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No.2-Perumalappa. Defendant Nos. 2 and 3 induced defendant No.1 to lodge a complaint to get back the property. It is further contended that Malur police summoned the plaintiff in connection with the schedule property at the instance of the defendants. Defendants came to the spot on 29.3.1993 and tried to interfere with the possession of the land and suit for permanent injunction was filed.

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The suit was strongly resisted by the

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defendants. Their contention has been the denial and their plea is, defendant No.1 is the absolute owner in possession of the suit schedule property and the same was granted under Inams Abolition Act by the Deputy Commissioner and since the date of grant he has been in possession and enjoyment of the schedule property which measures 2 acres 04 guntas with eucalyptus trees raised therein by the defendants and two crops have been cut and removed and the third

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crop is standing and they are aged about 1 ½ years. It is also stated that the defendant No.1 is illiterate having no worldly knowledge and aged about 80 years deaf, sightlessnness, physically week, unable to walk without assistance of his family members. Defendant No.1 is having one son who is defendant No.2 and having grand children defendant No.3 and others. Defendant No.2 is looking after the family management and there was no necessity for the defendant No.1 to sell the schedule property.

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It is contended that on 30.2.1980 defendant No.1 executed an unregistered will in favour of his daughter in law and grand children and due to old age, defendant No.1 died on 12.12.1993 and his son and grand sons have succeeded to the estate of defendant No.1. Plaintiff is not in possession of the schedule property.

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6. It is further contended that Plaintiff’s father

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and defendant No.1 are brothers. Long back they have separated and there is ill will between them for the past 25 years. When such being the case, in order to grab the property.

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Defendant No.1 while he was sleeping in

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varandah in the house of defendant No.2 plaintiff kidnapped defendant No.1 on 15.2.1993, took him to

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Sub Registrar’s office on the same day through fraud and deceit got the registered sale deed executed in his favour. Thus, plaintiff played illegal acts and took advantage of the absence of other members of the family of defendant No.1 and kidnapped defendant No.1 for getting their illegal act done in the form of getting registered sale deed in their favour. A complaint was also lodged in the police station in this regard. Defendant No.1 ultimately was found in the house of his brother Ramappa who is resident of

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Neralakere, Krishnagiri taluk, Tamilnadu and defendant No.2 went to the said house and bring back his father and produced him before the Malur police also and his statement was recorded. Thus the defendants placed their pleadings before the court.

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In so far as O.S.No.165/1993 connected to RA No.98/2000 connected to RSA No.597/2006 is concerned, it is filed by the plaintiffs/B. Venkataramanappa and others on 3.7.1993 admittedly subsequent to the suit filed by the plaintiff -M.Muniyappa in O.S.No.94/1993. The plaintiffs and defendants are as under:

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Plaintiffs:

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B. Venkataramanappa;

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Perumalappa s/o. B. Venkataramanappa; 3. B.Nagaraja S/o. Perumalappa;

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Srinivasa S/o. Perumalappa;

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Narayanaswamy s/o. Perumalappa;

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Krishnappa s/o. Perumalappa;

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Nagarathnamma D/o. Perumalappa

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Defendants:

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M.Muniyappa @ Ebourappa;

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D.M.Govindappa s/o.D.M. Muniswamappa;

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Muniramaiah s/o. Junjappa;

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M.Muniyappa s/o. Munivenkatappa;

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Srinivasa Iyengar, R/o. Santhenahalli, Malur Taluk;

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M.V. Muni reddy, Sub-Registrar, Malur

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Here it is necessary to mention that, plaintiff Nos. 1 to 3 herein are none other than the defendants in O.S.No.94/1993 and in the said suit, they have filed written statement in the capacity of defendants. But in the changed scenario, they are plaintiffs in this case and they asserted what they had contended in the said suit and the present suit filed by them is for declaration against the defendants to declare that the sale deed dated 15.2.1993 alleged to have been executed by plaintiff No.1-B.Venkataramanappa in favour of defendant No.1-M.Muniyappa in respect of

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the schedule property as null and void and for permanent injunction to restrain the defendants or

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their agents and family people and other persons in interfering with the peaceful possession and

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enjoyment of the land in survey No.69/1 measuring 01 acre 20 guntas situated at Medatti village, Malur Taluk.

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According to the plaintiffs in

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O.S.No.165/1993, defendants played havoc, fraud and deceit and got the registered sale deed from B.Venkataramanappa/plaintiff No.1 in

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O.S.No.165/1993 who was aged about 80 years,

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visually challenged and had no control for movement because of the said reason the defendants i.e. a fraction led by M. Muniyappa took unfair advantage, kidnapped the said B.Venkataramanappa taking advantage of absence of other members of the family. In this connection, Sub Registrar, witnesses and scribe contributed their might in colluding each other in support of M.Muniyappa and got the registered sale

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deed though no consideration was passed, the sale deed claimed by M.Muniyappa is nothing but act of forgery.

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For this plaint, defendants/M.Muniyappa and others in this case have reiterated their earlier pleadings what they had made in O.S.No.94/1993 and further contend the genuineness of the registered sale deed executed by B.Venkataramanappa in favour of M. Muniyappa.

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At the cost of repetition, it is stated that M.Muniyappa in O.S.No.94/1993 is the plaintiff. However, in the suit filed by B.Venkataramanappa in O.S.No.165/1993 defendants in O.S.No.94/1993 are the plaintiffs.

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The following are the issues framed by the trial court in both the suits.

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In O.S.No.94/1993 filed by M.Muniyappa

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(i) Whether the plaintiff proves his lawful possession over the suit schedule property on the date of suit?

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(ii) Whether the plaintiff proves the alleged interference?

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(iii) What order or decree?

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In O.S.No.165/1993 filed by

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Venkataramanappa and group

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(i) Whether plaintiff proves that the defendant No.1 obtained the sale deed dated 15.2.1993 fraudulently against the will and wish of plaintiff No.1?

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(ii) Whether plaintiff proves that 1^st plaintiff lost his vision and he was a deaf and he was not in a position to move without the assistance of other plaintiffs?

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(iii) Whether plaintiffs prove that defendant No.1 kidnapped the plaintiff No.1 in order to obtain the sale deed?

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(iv) Whether plaintiffs prove that the sale deed dated 15.2.1993 is a fraudulent one it is to be declared as null and void?

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(v) Whether defendants prove that 1^st plaintiff voluntarily executed the sale deed for Rs.14,000/-?

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(vi) Whether defendants prove that after executing the sale deed he put in possession and enjoyment of suit schedule property?

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(vii) Whether plaintiff is entitled for the relief as prayed?

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(viii) What order or decree?

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The learned trial Judge was accommodated

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with the following oral and documentary evidence on

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behalf of both the parties in both the suits.

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PW1-M. Muniyappa PW2-D.M.Govindappa PW3-Mariyappa PW4-Srinivas Iyangar

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Ex.P1-Sale deed

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Ex.P2-RTC extract DW1-Perumalappa DW2-Krishnappa DW3-Sampangiramaiah

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Ex.D1-Will Ex.D2-Police complaint Ex.D3-N.C.R. Ex.D4,5-RTC extracts D6-Application to Tahsildar D7-Death certificate D8-One photograph D9-Eye operation certificate D10,11-Patta books D12 and 13-Tax paid receipts D14-Form No.VIII D15 to 18:-RTC extracts D19-Mutation extract D20, 21-RTC extracts D22, 23-Notice and postal receipt D24-CC of sale deed.

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The aspect that came into consideration

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before the trial court was genuineness or fraudulent nature of the registered sale deed dated 15.2.1993, disability and inability of B. Venkataramanappa to execute the registered sale deed in favour of M. Muniyappa whether sale deed being obtained by playing fraud.

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The learned trial judge on conclusion of the

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trial dismissed the suit in O.S.No.94/1993 filed by the plaintiff-M. Muniyappa and decreed the suit in O.S.No.165/1993 filed by B. Venkataramanappa and others, declaring that the sale deed stated to have been executed by B. Venkataramanappa in favour of M. Muniyappa on 15.2.1993 as null and void and granting consequential relief were granted.

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Being aggrieved by the said judgment and decree, M. Muniyappa, plaintiff in O.S.No.94/1993 and defendants in O.S.No.165/1993 preferred regular appeal in R.A.No.98/2000 and R.A.No.100/2000.

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Incidentally, both the regular appeals are preferred by the fraction led by M. Muniyappa. The learned first appellate judge allowed both the appeals with costs considering the evidence and the materials

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available on record. The operative portion of the

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judgment of the first appellate judge is as under:

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“Both the appeals are allowed with cost. The judgment and decree in O.S.94/93 & O.S.165/93 on the file of Addl. Civil Judge (Jr.Dn) Malur, is hereby set-aside. Consequently the suit in O.S.94/93 stands decreed with cost as prayed for. As well the suit in O.S.165/93 before the trial court stands dismissed with cost.

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Advocate fee fixed at Rs.1,000/- in each appeal.

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Draw decrees accordingly. Retransmit the LCR to the trail court along with the copy of this judgment.

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Thus, both the appeals filed by

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M.Muniyappa came to be allowed by the first appellate court on 15-12-2005 and the suit of M. Muniyappa in O.S.No.94/1993 came to be decreed with costs granting permanent injunction. Similarly, suit in O.S.No.165/1993 filed by B. Venkataramanappa and

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others came to be dismissed. In the sense the registered sale deed dated 15.2.1993 gained its validity.

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Against the said judgment and decree of the first appellate court, B. Venkataramanappa dead

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by his LRs have preferred these two regular second

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appeals as under:

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Sl. No.	RSA No. filed by	R.A.No. filed by	O.S.No. filed by
1.	596/2006 B. Venkataramanappa dead by LRs	100/2000 by M. Muniyappa	94/1993 by M. Muniyappa
2.	597/2006 B. Venkataramanappa dead byLRs	98/2000 by M. Muniyappa	165/1993 B. Venkataramanappa and others

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Earlier while admitting the appeals, this

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court framed the following substantial questions of law

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in both the appeals:

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In RSA 596/2006 on 5.7.2010

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“Whether in the facts and circumstances of the case, the Appellate Court was justified in reversing

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the judgment and decree passed by the Trial Court ignoring the admission of the plaintiff that possession of the land was not delivered?”.

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In RSA No. 597/2006 on 22.2.2007 and on

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5.7.2010

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On 22.2.2007

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“Whether the lower Appellate court was justified is reversing the well considered reasoned order of the trial Court holding that the sale deed dated 15.2.1993 is vitiated, without assigning proper reasons”.

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On 5.7.2010

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“1.Whether in the facts and circumstances of the case, the Appellate Court was justified in holding that Ex.P-1 is proved without properly considering the evidence of P.Ws.1 to 4 and D.W.1?

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Whether in the facts and circumstances of the case, the Appellate Court was justified in granting injunction in favour of the respondents ignoring the admission of the plaintiff and exhibits D- 4 and 5 and D-20 and 21?”.

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When the matters are taken up on

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18.11.2020 in the presence of both the learned counsel, the following additional substantial questions of law were framed:

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“(i) Whether possession of Muniyappa could be considered as lawful possession which is the principal ingredient present in a suit for permanent injunction?

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(ii) Whether the fraud or coercion and other coercive steps are established by the plaintiffs in OS No.165/1993 with reference to order VI Rule 4 CPC?

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(iii) Whether extent of land available in the survey number and the extent of suit property purchased by Muniyappa under the sale deed dated 15.2.1993 makes any difference?”.

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Learned counsel Sri G.B. Nandish Gowda

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for appellants would submit the fraud and deceit is apparent on the face of the suit. A man at the age of

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80 years who had no proper eye sight, had physical

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disability and inability while sleeping was literally kidnapped by M.Muniyappa and others and was made as signatory to the sale deed though he had no intention to sell away the property much less in limine. The entire schedule property has been in actual joint possession of the family of B. Venkataramanappa as it was granted by the government under the Inams Abolition Act and from the day one of grant, he is in possession and it has not been surrendered to anybody or an one much less M.Muniyappa. The schedule property originally is a granted land under Personal and Miscellaneous Inams Abolition Act by the Deputy Commissioner. It was also submitted that the Sub Registrar, scribe and witnesses everybody were parties to the deceit and fraud. Indispensable circumstances stated would clearly suggest that the sale deed Ex.P1 is an out come of fraud and no validity could be attached to it.

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Learned counsel Smt.Neeraja Karanth for

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M.Muniyappa. respondents in these appeals would

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submit that there is no spot of any claim in respect of

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the sale deed executed in favour of Muniyappa. The fraction led by B. Venkataramanappa have developed

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an after thought and have filed suit against her client

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M. Muniyappa. It is also submitted that learned trial judge basically failed to understand the principles of law for grant of permanent injunction and also legal norms required for setting aside that sale deed on the ground of fraud and in the process dismissed the suit filed by M. Muniyappa and decreed the suit filed by B. Venkataramanappa and others.

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In the context and circumstances of the

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case, the following arrangements of points is to be noted.

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Grant of land in favour of B. Venkataramanappa as pleaded is not disputed. In the sense, it was he who got the land under Personal and Miscellaneous Inams Abolition Act. The registered sale deed 15.2.1993 was stated to have been executed by B. Venkataramanappa in favour of M. Muniyappa. Fraction led by B. Venkataramanappa tooth and nail opposed the sale or its validity or genuineness. Said B. Venkataramanappa could not have even identify the parties due to blindness to execute the registered sale deed. In the original suit filed by B. Venkataramanappa and his family members in OS No.165/1993 almost all the parties involved in execution of registered sale deed are made as the defendants viz., M. Muniyappa purchaser of one acre of land under the registered sale deed dated 15.2.1993 from B. Venkataramanappa; D.M. Govindappa s/o. D.M. Muniswamappa, Muniramaiah

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S/o. Junjappa, M.Muniyappa s/o. Munivenkatappa are the witnesses to the sale deed, Srinivas Iyengar r/o Santhenahalli, Malur Taluk, is the scribe of the document and M.V.Munireddy is the Sub-Registrar Malur.

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In this connection, learned counsel Sri. G.B. Nandish gowda for appellants in both the appeals would submit that the Sub Registrar, Malur, is not made as a party as a government servant, but he is made as a party because of his coercive and deceitful acts in getting the sale deed registered some how or the other because one of the ground taken is the suit against government servant is not maintainable.

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Now the domain of this court is

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meticulously to chose the substantial question of law and answer it. Insofar as substantial and additional substantial questions of law are concerned, the first

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question is, whether the trial court erred in reversing the judgment. This question of law has to be read in the background of validifying or abrogating the legality of the same. The appellate court reversed the judgment of the trial court on the ground that possession was not delivered. In the context the finding of the appellate court appears to be well thought.

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In this connection, it is necessary to look into the RTC extracts as it contains various columns right from survey Number, sub survey number, extent, number of trees, nature of soil, owner and other rights and remarks.

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In Ex.P2, is the RTC extract, wherein, the

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extent of land in survey No.69 is shown as 2 acres 05 guntas, foot kharab of 01 gunta, net availability is 2 acres 04 guntas. In ownership’s column, the name of

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B. Venkataramanappa is mentioned and in Column No.10, it is stated as Pitrarjitha. Regard being had to the fact that both the parties agreed that it is a granted land.

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Insofar as RTC produced at Ex.D4 is concerned, it pertains to the year 1980-81. The extent is shown as 01 acre 14 guntas and the name of the owner is shown as “B. Muneppa, Perumalappa s/o. B. Venkataramanappa. Here again it is necessary to mention, the total extent of land is stated to be 2 acres 05 guntas. Similarly in Ex.D5 which is RTC extract for the year 92-93 is concerned, the extent is shown as 01 acre 14 guntas and the name of Perumalappa s/o. B. Venkataramanappa is shown in Column No.9.

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Insofar as Ex.P2-RTC extract filed in O.S.No.94/1993 on behalf of M. Muniyappa is

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concerned, the extent is shown as 2 acres 05 guntas and 01 gunta as karab and the name of B. Venkataramanappa is shown in Column No.9 for the year 1992-1993. Ex.D19 is the mutation Register extract filed by the defendants in O.S.No.94/1993 wherein request for change of mutation was rejected because of the objection received.

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The substantial question of law is, whether

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the sale deed is hit by validity for want of delivery of possession?

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The concept of ‘possession’ has to be looked into from two angles for contextual reading. Not only possession for that matter any aspect has to be read along with reference to entire context. The registered sale deed dated 15.2.1993 is marked as Ex.P1 in the suit filed by M. Muniyappa (Ex.D24 in another suit i.e. in O.S.No.165/1993)

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The Specific Relief Act provides for

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cancellation of instrument. In this connection

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instrument has to be read as a deed in writing. The said sale deed is questioned regarding its total validity. The question by the plaintiffs is on the ground, consideration is not received and possession not handed over.

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Here it is necessary to mention a portion of the cross examination of PW1-M. Muniyappa in O.S.No. 93/1994. It is written in Kannada Language. As I am acquainted with the Kannada Language, I read and write the same in English.

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The portion of cross examination relied

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upon by the learned counsel for defendants is, “land

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was sold but possession was not given. They cut crops. He denied the suggestion that from 15^th day of the month when defendant No.1 was being searched,

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Muniyappa brought him in auto and got the registered sale deed executed.”

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Learned counsel for B. Venkataramanappa

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would submit that even PW3 has stated that sale transaction did not take place in his presence. Said B. Venkataramanappa died during the pendency of the suit.

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Now the fraud is stated to have been played by M. Muniyappa and his men on B. Venkataramanappa. Incidentally before the evidence could be recorded he died and sworn testimony available is only of Perumalappa son of B. Venkataramanappa.

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The cancellation of instruments of a

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particular categories is available in respect of voidable contract. For example, when the consent is taken to a contract by mistake, mis representation, fraud and

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undue influence and coercion. In this case fraud is alleged against M.Muniyappa in getting the registered sale deed as per Indian Contract Act, 1872. Fraud generate when something is added to mis representation. Mis representation gets generated when something is added to representation. Mere representation is a statement of fact. When the statement of fact is wrong it is mis representation. When the mis representation is intentionally made to deceive another person that becomes fraud. In this case not only fraud, cheating is also alleged. It is in this connection order VI Rule 4 provides what kind of particulars are required to be pleaded and established in a suit that challenges the sanctity and validity of a document and seeks for declaration of the same as null and void.

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38. Appellants/plaintiffs have made the Sub-

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Registrar, witnesses and scribe as parties. When there

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is no pleading regarding their conspiracy and fraudulent acts specifically attributable to them, it is just not proper to drag a Government servant to the court. It was submitted that the Sub-Registrar is made party in his personal capacity then the circumstances are to be established what fraud even is alleged let alone established.

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A suit for setting aside instrument on the ground of fraud in order to make attesting witnesses, scribe and Sub-Registrar as also party there must be a pleaded circumstances which places how each of them in official process goes in its way. Persons involved in official process are meant to discharge public duty Before making them party there must be proper materials placed before the court how their personality is mixed in the transaction. The main ground of the appellant is that Venkataramanappa was kidnapped while he was sleeping, he was unable to walk, see and

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to move also. When it is alleged that he was kidnapped while he was sleeping and village cannot be considered as black out there must be a witness who has seen Venkataramanappa being carried away and except filing complaint there is no further case if any criminal case is registered for kidnap. If a person is kidnapped on 15.02.93 and was not heard or seen or known for three days the normal course will be fiery and anxiety and searching. Either missing complaint or complaint for kidnapping is not filed. It is on that date no complaint of kidnap or missing is filed or registered against defendant-Muniyappa or members of his family. A complaint is filed presenting one’s grievance or injustice happened to him and seeks for redressal. On the other hand it cannot be made as a document for future litigation. The witnesse supported as witnesse stated by the appellant is that one Marakka who is groundnut seller had seen

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Venkataramanappa in the company of Muniyappa in the Sub-Registrar office. This matter is not explained in original deposition or evidence or establishment of other circumstances.

¶232

Another aspect to be considered is that a man of 80 years, sick, blind as stated is kidnapped one cannot say there will not be any resistance, chance of anxiety, side effects are quite normal. In this connection absolutely there is no complication developed for Venkataramanappa being presented. He is stated to be blind and disabled but not dump there is no scene being played or established. Insofar as the learned trial Judge who had decreed the suit castigated the evidence of PW-2 on the ground that he had consumed alcohol. There should have been reasons and observation that he has consumed alcohol and castigating evidence appears to be incomplete proceedings.

¶233

¶234

Further it is necessary to mention that the

¶235

total extent of land in Sy.No.69/1 is 2 acres 4 guntas

¶236

and registered sale deed sought to be cancelled by Venkataramanappa and executed by

¶237

Venkataramanappa in favour of Muniyappa is 1 acre.

¶238

It is necessary to mention the circumstances that when a person is kidnapped or kept in darkness due to his disability unfair advantage is taken and without

¶239

passing consideration a document is obtained the extent that was obtained is 1 acre not entire 2 acres 5 guntas. In this connection hypothetical example is when a thief in the place of theft finds two gold coins

¶240

when he commits theft he takes two coins and shall not show generosity of taking one coin instead of two coins. In this connection if there was deceit, cheat it could have been for entire 2 acres 4 guntas. Of course it will have its own reason, one of the possible

¶241

¶242

reason is that Venkataramanappa was conscious of

¶243

selling only 1 acre and retaining 1 acre 4 guntas.

¶244

Insofar as sale deed is concerned when the

¶245

said instrument is sought for cancellation, the execution is admitted and intention to sell, execution of sale deed according to defendant has not come into existence through good reasons and on the other hand seller victimized and fraud was played on him. It is in this connection fraud has to be established in detail. This is the language of order VI Rule 4 CPC. One of the aspect as I have stated earlier and factors which victimized free and genuine consent are mistake, coercion, undue influence, misrepresentation and fraud. It is already discussed how misrepresentation becomes fraud. The steps will have to be explained in a systematic and understandable way of course in the present case it is stated that Venkataramanappa was kidnapped on 15.02.1993.

¶246

¶247

When a fraud is alleged in general the evidence is not only insufficient but whatever pleaded is ambiguous and uncertain. When Venkataramanappa was kidnapped it must be literal carrying there is no or not even a single person is examined to establish the same and three days was not confinement and no missing complaint or a criminal complaint came to be registered and no evidence regarding how they were searching. It is a question of father being kidnapped and son cannot keep quite there will be turmoil and tremors in the house, more particularly when kidnapped person is 80 years and blind. Further when he was taken to Sub-Registrar office it is stated that one Marakka, groundnut seller saw Venkataramanappa in the company of Muniyappa nothing extra. More particularly when there is no gesture and threatened attitude or such atmosphere or suspicion circumstances of any kind is pleaded

¶248

¶249

besides Marakka is not examined and PW-2 and PW-3 regarding possession of land.

¶250

Further so far as Sub-Registrar is

¶251

concerned it is easy to implead Sub-Registrar but there must be fraud played by him which will have to be explained step by step normally when a sale deed is presented in the office of the Sub-Registrar there will be perusal and when it goes before the table of the Sub-Registrar he asks questions to the seller and buyer say whether seller has agreed to sell schedule property to the purchaser for a cash consideration as mentioned in it and he hears the answer and more particularly Rs.1,000/- was paid in the presence of the Sub-Registrar.

¶252

Now the question is, if Sub-Registrar does not come for evidence he could have been summoned as a witness for purpose of cross examination. It

¶253

¶254

cannot be forgotten for a while he was not under sedation or had become a vegetable simply nodding his head for all the questions. Under these circumstances the fraud alleged against the SubRegistrar is neither specific nor generic nor precise and not acceptable. It appears he has been made party definitely not for good reasons.

¶255

Next aspect would be witnesses. Witnesses normally attestor’s duty is to receive acknowledgement regarding executant of the document and executrix signing in their presence or affix some mark or somebody signing at his direction of course both the witnesses need not be present at the same time. If they are parties to fraud no specific allegation whether they held Venkataramanappa they sheltered him for confinement in secrecy or they shut his mouth or he was kept under threat he was subject to coercion or undue influence not a single aspect

¶256

¶257

could be seen. It is a regular second appeal but establishing fraud there are each set of principles of evidence and establishing has to be complete, systematic and that is absent.

¶258

In the further circumstances of the case

¶259

regarding possession of the schedule property it is stated in the sale deed that possession was delivered. Now the question there is an admission in the evidence of PW-1 that possession was not handed over to him under the sale deed. Under the circumstances the schedule property is not a house or premises which is kept under lock and key, according to plaintiff eucalyptus trees two crops he had already cut and removed and third crop aged about 1 ½ years. Now the question is if total land is 2 acres 4 guntas and land sold under Ex.P-1 in Sy.No.69/1 is 1 acre situated at Medatti Village, Malur Taluk being bounded on East by Bedi Kullappa’s land, West by

¶260

¶261

A.D.Munithimma’s land, North by defendant’s land in

¶262

the same survey number, South by Bedi Kullappa’s land.

¶263

The plaint schedule in O.S.No.165/93 is as

¶264

under:

¶265

“1 acres of land out of total extent of 2 acres 10 guntas in Sy.No.69/1 at Medatti Village, Malur Taluk bounded on East by Beedi Kullap’s land, West by A.D.Muithimma’s land North by remaining land of plaintiff in same survey number and South by Kullappa’s land”.

¶266

On perusal of the description of property reveals that northern portion is of the plaintiff and southern portion is disputed land. In the circumstances of the case he is the absolute owner of the adjoining property, it is not disputed and enjoyment of the property in the disputed land cannot be called as acts of possession. Normal rule is “possession follows title when the land is vacant”.

¶267

¶268

In order to claim injunction and on the

¶269

basis of possession the basic requirement must be, it must be a lawful possession. The established two aspects of possession are corpus possessionis which means subject matter of possession second one is animus possidendi which means mental element which states that person is entitled to be in possession. Combination of these two forms the lawful possession. There was no such kind of acts of possession and mere claim of possession cannot be considered as lawful possession morefully to honour with order of permanent injunction.

¶270

With this the total property of 2 acres 4 guntas out of which 1 acre was sold. It is stated that Venkataramanappa has only son Perumalappa who is defendant No.2 and defendant No.3 is the son of Perumalappa the things are understandable in their way. Out of 2 acres 4 guntas, 1 acre of land sold to

¶271

¶272

Muniyappa cannot be embarked or in isolation with fraud, deceit, cheating and related.

¶273

More particularly when fact has to be established through document which has undergone legal formalities such as stamp duty, registration and the related and when the mentioning of the act is very clear regarding delivery of possession, no flaw is established against Ex.P1 sale deed by Venktaramanappa to M Muniyappa No oral evidence can be accepted. It is quite clear from Section 91 of Indian Evidence Act.

¶274

The substantial questions of law framed by this court on different dates are answered accordingly.

¶275

Trial Judge did not understand the basics and has dismissed suit in O.S.No.94/93 but I find infirmities, illegalities or perversity in the Judgment

¶276

¶277

and decree passed by Additional Civil Judge (Jr.Dn), Malur in O.S.No.165/93 and whatever discussion made above automatically applies to O.S.No.165/93 and O.S.No.94/93. As discussed, possession being entered through sale deed it cannot be forgotten for a while there cannot be oral evidence against a written.

¶278

Setting aside of the Judgment and decree passed in O.S.No.94/93 by the appellate Judge is rightful decision and allowing the appeal dismissing the suit in O.S.No.165/93 is a rightful decision by the appellate Court. Similarly dismissing suit of the plaintiff in O.S.No.94/93 by the trial Judge is improper, illegal, infirm, capricious and liable to be set aside. Accordingly first appellate Judge in R.A.98/2000 and R.A.No.100/2000 has rightly set aside the Judgment. Now in the circumstances I find there are no grounds calling interference to set aside Judgment and decree passed in R.A.No.98/2000 and R.A.No.100/2000.

¶279

¶280

Both the appeals are hereby dismissed. No

¶281

order as to costs.

¶282

Sd/JUDGE

¶283

tsn*/SBN

Sri B Venkataramanappa Since Dead by His Lrs v. Sri M Muniyappa @ Hebburappa

Case brief

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Sri B Venkataramanappa Since Dead by His Lrs v. Sri M Muniyappa @ Hebburappa

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