A second appeal by the defendant challenging the lower courts' judgment declaring a registered sale deed null and void and declaring the plaintiff entitled to share in partitioned property acquired by the Karnataka Housing Board.
The appeal was dismissed, and the judgments and decrees of the courts below were confirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2023:KHC:37038 RSA No. 130 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 130 OF 2016 (PAR)
BETWEEN:
MEHABOOB SAB S/O BUDJI BADESAB AGED ABOUT 67 YEARS, AGRICULTURIST R/O PATHANAGERI HARAPANAHALLI TOWN DAVANAGERE DIST. 583131
…APPELLANT
(BY SRI. RAGHAVENDRA S., ADVOCATE)
AND:
Digitally signed by R DEEPA Location: High Court of Karnataka
NC: 2023:KHC:37038 RSA No. 130 of 2016
AGED ABOUT 52 YEARS,
S/O GANISAB AGED ABOUT 31 YEARS,
AGED ABOUT 26 YEARS,
NC: 2023:KHC:37038 RSA No. 130 of 2016
ALL ARE R/AT PATANAGERI HARAPPANAHALLI TOWN DAVANAGARE DIST.-583 131.
NC: 2023:KHC:37038 RSA No. 130 of 2016
…RESPONDENTS
(BY SRI. ESSKAY ASSOCIATES FOR R1 SRI. H.L. PRADEEP KUMAR, ADVOCATE FOR SRI. BASAVARAJ V. SABARAD, ADVOCATE FOR R23 R1, R6, R11 & 20-24 ARE HELD SUFFICIENT R2, R14, R15 SERVICE HELD SUFFICIENT R5 & R9 ARE SERVED R3, R4, R7, R8, R10, R12, R13, R16 & R19 NOTICE DISPENSED)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 08.10.2015 PASSED IN R.A NO.40/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, HARAPANAHALLI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 19.07.2012 PASSED IN O.S NO.236/2007 ON THE FILE OF THE CIVIL JUDGE AND JMFC., HARAPANAHALLI.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the appellant
challenging the judgment and decree dated 08.10.2015, passed in R.A.No.40/2013 by the Senior Civil Judge & JMFC, Harapanahalli, confirming the judgment and decree
dated 19.07.2012, passed in O.S.No.236/2007 by the Civil
Judge, Harapanahalli.
It is the case of the plaintiff that the plaintiff is the
son of Budji Badesab, S/o Late Dadasab and the defendants are the children and grandchildren of Late Badesab. Said Badesab had 8 children, namely, Imam Bi, Gani Sab, Dadesab, Mariyan Bi, Hussain Sab, Alla Bakash, Mahaboob Sab and Mustafa. Out of them, Imam Bi, Gane Sab and Dade Sab are no more. Late Budji Badesab and his sons got divided their properties through registered partition deed dated 07.02.1981, and in the partition, property worth about Rs.15,000/- was given to Late Badesab and property worth about Rs.1,500/- each was given to plaintiff and other male sons of Late Badesab.
NC: 2023:KHC:37038 RSA No. 130 of 2016
Plaintiff's father and his sons are the joint owners of property measuring 7.14 acres in Sy.No.2 of Adavihalli Village and out of the said property, an extent of 4.14 acres were partitioned and the remaining 3 acres was not partitioned among the joint owners. As per the partition deed, 'A' schedule property measuring 6.20 acres and the land in Sy.No.236/A was allotted to the father of the plaintiff. The said property is in joint possession of the plaintiff and other family members. After the death of father of plaintiff, the plaintiff has succeeded to the suit schedule properties. Plaintiff is the absolute owner of the suit schedule property under partition deed dated 07.02.1981. Defendants No.22 and 23 have acquired the property bearing Sy.No.2 for public purpose. The plaintiff is entitled for compensation of his share. The plaintiff came to know that the defendant No.1 has taken the compensation amount towards the entire 7.14 acres.
Thereafter, the plaintiff got issued legal notice to defendants No.22 and 23. It is learnt by the plaintiff that defendant No.1 has created the sale deed showing that
NC: 2023:KHC:37038 RSA No. 130 of 2016
the plaintiff has sold his share of land measuring 2.07 acres in favour of defendant No.1. The sale deed is created by defendant No.1. Hence cause of action arose for the plaintiff to file the suit for partition and separate possession and declaration of sale deed as null and void.
NC: 2023:KHC:37038 RSA No. 130 of 2016
for acquisition of lands and the plaintiff can recover the said amount from defendant No.1 who has withdrawn the compensation amount and suit is bad for non-joinder of necessary parties and prayed to dismiss the suit against defendants No.22 and 23.
NC: 2023:KHC:37038 RSA No. 130 of 2016
plaintiff examined himself as PW-1 and got examined two witnesses as PW-2 & PW-3 and got marked 24 documents as Exs.P1 to P24. Defendant No.1 examined himself as DW-1; got examined two witnesses as DW-2 & DW-3; and on behalf of defendants No.22 and 23, the GPA holder was examined as DW-4 and got marked 5 documents as Exs.D1 to D5. The trial Court after considering the oral
and documentary evidence of the parties, answered issue Nos.1, 2 and 7 in affirmative; issue No.3 partly in affirmative and issue Nos.4 and 5 in negative and consequently decreed the suit with costs. It is declared
that the plaintiff is entitled for compensation amount in respect of his share of 2.07 acres in Sy.No.2 of Adavihalli Village from defendants No.1, 22 and 23. It is further
ordered that the plaintiff is entitled for 2/14th share in Sy.No.2 measuring 3 acres and 2/14th share in 6.20 acres in Sy.No.236/A by metes and bounds and that plaintiff is entitled for compensation amount in respect of 2/14th share in Sy.No.2 of 3 acres at Adavihalli Village from defendants No.22 and 23. It is further declared that th sale deed dated 16.01.1981, is not binding on the plaintiff.
NC: 2023:KHC:37038 RSA No. 130 of 2016
dismissed the appeal filed by the defendant No.1, confirming the judgment and decree passed by the trial Court. The defendant No.1, aggrieved by the judgments and decrees passed by the courts below, has filed this second appeal.
is a presumption in regard to the execution of the registered documents. The courts below have committed an error in not drawing the presumption. He further submits that the plaintiff delivered possession of the suit schedule properties in favour of defendant No.1. On the strength of the registered sale deed, the name of defendant No.1 was entered in the revenue records and defendant No.1 has produced the revenue records to establish his possession over the suit schedule property. He further submits that the Karnataka Housing Board has
acquired the suit land and surrounding lands and defendant No.1 has withdrawn the compensation amount. Hence he submits that the courts below have not properly considered the pleadings and the oral and documentary evidence. Hence he submits that the courts below have committed an error in passing the impugned judgments. On these grounds prays to allow the appeal.
submissions of learned counsel for defendant No.1.
NC: 2023:KHC:37038 RSA No. 130 of 2016
release of compensation amount, but the plaintiff came to know that the defendant No.1 had withdrawn the compensation amount on the ground that plaintiff had executed the registered sale deed in favour of defendant No.1 on 16.01.1984. The plaintiff immediately issued a legal notice to defendants No.22 and 23 stating that the defendant No.1 got created the registered sale deed dated 16.01.1984, and requested not to release the compensation amount. The plaintiff in order to substantiate his case, examined himself as PW-1. He has reiterated the plaint averments in the examination-inchief. He has denied the execution of registered sale deed dated 16.01.1984 and also denied his signature on the alleged registered sale deed. The plaintiff has produced records to show that the said property was originally owned by Badesab and thereafter there was a partition between Badesab and his sons. In the said partition, the suit properties were fallen to the share of plaintiff's father.
Defendant No.1 has not denied about the partition that took place between Badesab and his sons on 07.02.1981
NC: 2023:KHC:37038 RSA No. 130 of 2016
and also that the suit schedule properties were fallen to the share of plaintiff's father.
When the plaintiff has specifically denied his signature on the alleged registered sale deed, and also execution, the burden is cast upon the defendant No.1 to prove the contents as well as the signature of plaintiff on the registered sale deed. Further, defendant No.1 has
NC: 2023:KHC:37038 RSA No. 130 of 2016
withheld the original registered sale deed. The said document goes to the root of the case. Hence, in view of non-production of original registered sale deed, an adverse inference has to be drawn against defendant No.1 under Section 114(g) of the Indian Evidence Act, 1872. Defendant No.1 has failed to establish that the plaintiff had executed the registered sale deed in his favour. In view of the law laid down by the Hon'ble Apex Court in the case of DHANI RAM (DIED) THROUGH LRS. & ORS. VS. SHIV SINGH, disposed on 06.10.2023, wherein it is held that, "mere registration would not sanctify a document by attaching to it an irrebuttable presumption of genuineness". In view of the law laid down by the Hon'ble Apex Court that the contention of defendant No.1 that the sale deed is registered, a presumption can be drawn, does not hold water.
executed a registered sale deed in favour of defendant No.1 and defendant No.1 became the absolute owner on
the strength of the registered sale deed dated 16.01.1984.
Both the courts below were justified in passing the impugned judgments and decrees. I do not find any grounds to interfere with the impugned judgments and decrees. I do not find any substantial question of law that arise for consideration in this appeal.
I proceed to pass the following:
ORDER
The appeal is dismissed.
The judgments and decrees passed by the courts below are confirmed.
No order as to the costs.
In view of dismissal of the appeal, pending I.As., if any, do not arise for consideration and are accordingly disposed of.
SD/JUDGE
RD
2 issues framed by the court
Whether the defendant No.1 proved the execution of the registered sale deed by the plaintiff to establish title over the suit schedule properties?
Whether the courts below were justified in holding that the sale deed was not binding on the plaintiff and declaring it null and void?
Colour shows how this judgement treated each authority
DHANI RAM (DIED) THROUGH LRS. & ORS. VS. SHIV SINGHFollowed¶3
DHANI RAM (DIED) THROUGH LRS. & ORS. VS. SHIV SINGH
2 provisions across 2 enactments
MEHABOOB SAB S/O BUDJI BADESAB
BUDJI MUSTAFA S/O BUDJI BADE SAB
ALLABAKSH S/O BUDJI BADE SAB
KARNATAKA HOUSING BOARD
ASHOK S.KINAGI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
