Dismissed

Diwakar Babu v. Smt Surya Bai

Karnataka HC23 Sept 2021RSA/1054/2014

Case brief

AI extract

What is this about?

This second appeal challenges the dismissal of a suit for declaration of title. The court held that the plaintiff failed to prove ownership as he had disposed of the property in 1974 and slept over the matter for decades. Citing Hullappa Vs. State of Karnataka, the court affirmed the lower courts' rejection of the claim.

What did the court decide?

The regular second appeal under Section 100 CPC is dismissed; the declined exemption from court fees is upheld.

Diwakar Babu Vs Smt Surya Bai — Specific Performance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF SEPTEMBER 2021

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BEFORE

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THE HON’BLE MR. JUSTICE E.S.INDIRESH

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R.S.A. No.1054/2014

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BETWEEN:

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DIWAKAR BABU S/O LATE M VENKATESH AGED ABOUT 63 YEARS 7^TH B CROSS, KORAMANGALA BENGALURU-560 095.

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... APPELLANT

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(BY SRI V VISWANATH SHETTY, ADVOCATE)

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AND:

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SMT SURYA BAI W/O NAGESHWAR RAO AGED ABOUT 60 YEARS R/A SALANGI VILLAGE SHETTIHALLI STREET RAMANAGAR TOWN-571 511 BANGALORE RURAL DISTRICT

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CHOWDAMMA W/O C HANUMANTHAPPA AGED ABOUT 56 YEARS R/A ALAPPANAHALLI VILLAGE KASABA HOBLI HOSKOTE HOBLI-562 114. BANGALORE RURAL DISTRICT.

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SMT JAYA W/O M V VARADARAJU AGED ABOUT 42 YEARS

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NO.1, 2^ND CROSS SITE NO.17, RMV EXTENSION NEAR BDA COMPLEX BANGALORE-560092.

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THE MANAGING DIRECTOR KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD MUSEUM ROAD BANGALORE CITY-560003.

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M/S VALDEL HOLDING(INDIA) PVT LTD REPRESENTED BY ITS DIRECTOR OFFICE AT NO.4-A NITHESH BROADWAY M G ROAD BENGALURU-560 003.

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... RESPONDENTS

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(BY SRI VIJAYAKUMAR A PATIL, ADVOCATE FOR R4; R3 SERVED AND UNREPRESENTED NOTICE TO R1, 2 AND 5 ARE HELD SUFFICIENT)

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THIS R.S.A. IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 26.04.2014 PASSED IN R.A.NO.392/2012 ON THE FILE OF THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, DEVANAHALLI, BENGALURU RURAL DISTRICT, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 25.01.2012 PASSED IN OS.NO.259/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI.

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THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT, DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the plaintiff challenging the judgment and decree dated 26.04.2014 passed in RA.No.392/2012 on the file of the V Additional District

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and Sessions Judge, Devanahalli, dismissing the appeal and confirming the judgment and decree dated 25.01.2012 passed in OS.No.259/2006 on the file of the Senior Civil Judge and JFMC, Devanahalli dismissing the suit of the plaintiff.

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For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court.

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The plaint averments are that the plaintiff is

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the owner in possession of the suit schedule property and he has purchased the same in a public auction vide No.ADM(1)239/1970-71 dated 24.04.1971. It is further averred in the plaint that originally the suit schedule property was granted to one Lakshmidevamma and she failed to pay the taxes to the competent authority, and as such, the Government has put up the suit schedule property for auction and pursuant to the said auction, the plaintiff has purchased the suit schedule property. Based on auction purchase, the revenue

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records have been mutated in favour of the plaintiff. It is further averred in the plaint that the plaintiff had appeared for an interview on 12.08.1974 in Stump Schedule and Somappa Private Ltd Company, and he neither sold the suit schedule property in favour of defendant No.1 on 12.08.1974 nor he had intention to sell the suit schedule property. It is the specific case of the plaintiff that his signature is impersonated in the Sale Deed dated 12.08.1974 and as such, the Sale Deed dated 12.08.1974 is not binding on the plaintiff. It is further stated that defendant No.1 has sold the suit schedule property in favour of defendant No.2, as per Sale Deed dated 14.03.1978 and defendant No.2 in turn sold the suit schedule property in favour of Munishamaraju on 15.01.1981 and the said Munishamaraju had executed a registered Will dated 31.01.1986 in favour of defendant No.3 and as such, aforementioned sale deeds are not binding on the plaintiff. It is further stated that the Government has initiated the proceedings under the provisions of PTCL

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Act, in PTCL C.R.No.89/2000-2001 against defendant No.3 and in the said proceedings, the plaintiff had filed objections, however, the Assistant Commissioner, Doddaballapura directed the plaintiff to approach the Civil Court for necessary relief. In the meanwhile, the suit schedule property is acquired by KIADB for the purpose of International Airport project and defendant No.4 is made as party to the suit. It is alleged that the sale transactions made above are null and void and same is not binding on the plaintiff, and as such, the plaintiff has filed suit in OS No.259/2006 before the trial court for decreeing the suit.

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After service of summons, defendant No.5 entered appearance and filed written statement denying the plaint averments. Defendant No.1 was placed ex-parte before the court below and defendants 2 to 4 appeared through their respective counsel but have not filed written statement. It is the case of the defendant No.5 that the suit is not maintainable as the

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suit is barred by time. It is also the defence of the defendant No.5 that he is the owner of half portion of the suit schedule property having purchased the same from the defendant No.3 under the registered Sale Deed dated 31.10.2007 and it is further stated in the written statement that since the plaintiff had sold the suit schedule property in favour of defendant No.1 in the year 1974 and delivered the possession of the property, the suit filed by the plaintiff is not maintainable. Accordingly, defendants sought for dismissal of the suit.

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On the basis of the rival pleadings, the trial Court has formulated following issues for its

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consideration:

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Whether the plaintiff proves that, he is the absolute owner of the suit schedule property ?

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2. Whether the plaintiff proves that, the registered sale deed dated 12.08.1974 executed by defendant No.1 in favour of defendant No.3 is liable to be cancelled and this plaintiff is entitle for compensation awarded of the suit schedule property?

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3. Whether the plaintiff prove that, the joint development agreement dated 25.04.2006 created on the basis of registered sale deed dated 12.08.1974 between 3^rd and 5^th defendant is liable to be cancelled ?

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4. Whether the plaintiff proves the alleged interference of his peaceful possession and enjoyment of suit schedule property of the 3^rd defendant and he is entitled for permanent injunction against the defendants ?

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5. Whether the defendant No.5 proves that, the suit is barred by limitation ?

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6. Whether the defendant No.5 proves that, the suit is not properly valued and court fee paid insufficient ?

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7. Whether the defendant No.5 proves that, his vendors in title was having valid marketable title and he is bonafide purchaser of the written statement schedule property under registered sale deed dated 31.10.2007 ?

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8. Whether the defendant No.5 proves that, he is in possession and enjoyment of written statement schedule property ?

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9. Whether the defendant No.5 proves that, the plaint is liable to be rejected u/o.7 rule 11(B) of C.P.C ?

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10. What order or decree ?

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In order to establish his case, plaintiff

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examined himself as PW1 and got marked 19 documents as Exs.P1 to P19. On the other hand, defendants examined one witness as DW1 and produced 8 documents as Exs.D1 to D8.

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The trial Court, after considering the

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material on record, by its judgment and decree dated 25.01.2012 dismissed the suit of the plaintiff and being aggrieved by the same, the plaintiff has preferred Regular Appeal in RA.No.392/2012 on the file of First Appellate Court. The said appeal was resisted by the defendant No.5 who was the contesting respondent in the said appeal. The First Appellate Court, after reappreciating the facts on record, by its judgment and decree dated 26.04.2014, dismissed the appeal and confirmed the judgment and decree passed by the trial Court in OS.No.259/2006. Being aggrieved by the judgment and decree passed by the Courts below, the

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plaintiff has preferred this Regular Second Appeal under Section 100 of CPC.

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I have heard Sri.V.Viswanath Shetty learned

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counsel appearing for the appellant and Sri.Vijaykumar A.Patil, learned counsel appearing for the respondent No.4-KIADB.

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Sri. V.Viswawanth Shetty, learned counsel for the plaintiff/appellant submits that the finding recorded by both the courts below is not correct as the plaintiff has produced cogent material before the courts below to establish the fact that he had attended an interview on 12.08.1974 and the said aspect of the matter was not properly appreciated by both the Courts below and as such, there is material irregularity committed by Courts below.

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Per contra, Sri. Vijaykumar A. Patil, learned counsel for respondent No.4 submits that the finding recorded by both the Courts below is just and proper

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and he further argued that, plaintiff himself has executed the registered Sale Deed in favour of defendant No.1 on 12.08.1974 and same has been considered by both the Courts below while appreciating the documents on record. In that view of the matter, he contended that, no interference is called for in this appeal.

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Having heard the learned counsel appearing for both the parties and on perusal of finding recorded by the courts below, it is not in dispute that the suit schedule property has been purchased by the plaintiff in a public auction on 24.04.1971. The only issue revolves around in this the case is whether the plaintiff had sold the suit schedule property in favour of defendant No.1 on 12.04.1974 or not ? In this regard, the plaintiff has averred in the plaint as well deposed before the Court below that he had attended an interview on 12.08.1974 in Stump Schedule and Somappa Private Ltd Company and his signature has

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been impersonated in the Sale Deed and therefore, registered Sale Deed dated 12.08.1974 is not binding on the plaintiff. Considering the finding recorded by both the Courts below, it reveals that the plaintiff executed registered Sale Deed on 12.08.1974 in favour of defendant No.1 and thereafter, defendant No.1 has sold the suit schedule property in favour of defendant No.2 on 14.03.1978 and further, defendant No.2 has sold the same in favour of one Munishamaraju on 15.01.1981. It is further recorded by the courts below

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that the said Munishamaraju had executed a Will bequeathing the suit schedule property in favour of defendant No.3 on 31.01.1986. It is also forthcoming from the finding recorded by courts below that the suit schedule property has been acquired by KIADBrespondent No.4 for the purpose of International Airport project. Undisputedly, except the plaintiff, no other independent witnesses have been examined by the plaintiff to prove that the registered Sale Deed dated 12.08.1974 is sham and had fraudulently,

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prepared by impersonating the signature of the plaintiff on the said Sale Deed. If at all, the case of the plaintiff be accepted as he was attending an interview on 12.08.1974 in Stump Schedule and Somappa Private Ltd Company, there was no impediment for the plaintiff to examine the employer of the company to prove his presence there on that particular day. Apart from this, after purchasing the suit schedule property from the plaintiff, defendant No.1 sold same in favour of defendant No.2 and defendant No.2, in turn, sold to Munishamappa on 15.01.1981. The said

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Munishamappa executed registered Will in favour of defendant No.3 on 31.01.1986. Undisputedly, suit was filed on 12.02.2002 and the relief sought for by plaintiff challenging the Sale Deed is of the year 1974 (sale deed dated 12.08.1974) and there is inordinate delay in challenging the said Sale Deed dated 12.08.1974. Therefore, the finding recorded by the trial court with regard to issues 1 and 2 is just and

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proper which does not call for any interference by this court.

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I have also carefully considered the finding

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recorded by the First Appellate Court, whereunder, First Appellate Court, having re-appreciated the entire material on record and taking into consideration the provisions contained under Section 90 of Indian Evidence Act, 1872, has held that there is legal presumption in favour of registered documents, moreover, there is a lapse of 30 years in not challenging the said sale deed executed by the plaintiff. The First Appellate Court having reappreciated the entire facts, has recorded its finding at paragraphs 12 to 24, holding that the plaintiff has not produced any cogent material to establish his right to claim ownership in respect of suit schedule property and accordingly, dismissed the suit with exemplary cost of Rs.10,000/- payable to respondent No.5 therein and accordingly, confirmed judgment and decree

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passed by the trial court. Having considered the finding recorded by both the Courts below, I do not find any error in the judgment of the First Appellate Court imposing the cost of Rs.10,000/- to the plaintiff. In the light of the aforesaid discussion, in a declaratory suit, it is the burden of the plaintiff to prove his ownership through documentary evidence. This Court in the case of Hullappa Vs. State of Karntaka through Deputy Commissioner , reported in ILR 2012 KAR 4958 has held that in a suit for declaration of title, unless the plaintiff produce document of title, Civil court cannot grant declaration only on the basis of revenue records and said fundamental principle of law has to be kept in mind by the Courts. Following the law declared by this Court in said case, I am of the considered opinion that since the plaintiff sold the suit schedule property in favour of defendant No.1 on 12.08.1974 and having slept over the matter for nearly two decades and thereafter, filing a suit claiming declaratory relief over suit schedule property, is not permissible under law.

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The trial court has rightly dismissed the suit of the plaintiff and same has been affirmed by the First Appellate Court, which is in accordance with law.

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Therefore, I do not find material irregularity or perversity in the judgment and decree passed by the Courts below and accordingly, the Regular Second Appeal is liable to be dismissed . Since, the appellant has not made out grounds for formulation of substantial question of law as required under Section 100 of Code of Civil Procedure, appeal is liable to be dismissed at the Admission stage itself, accordingly,

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dismissed .

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Sd/JUDGE

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SB

Diwakar Babu v. Smt Surya Bai

Case brief

What is this about?

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Diwakar Babu v. Smt Surya Bai

Case brief

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