Allowed

D Rajarao S/O D Nagabhushanam v. D Subashchandra

Karnataka HC13 Sept 2024RSA/5089/2009

Case brief

AI extract

What is this about?

In a second appeal regarding ownership of suit property purchased in the plaintiff's name but held in defendant's revenue records, the court held an unregistered relinquishment deed ineffective. The appeal was allowed to declare the plaintiff the absolute owner, but injunction was denied due to lack of proven possession.

What did the court decide?

Appeal allowed; lower decrees set aside; suit declared as partly decreed with costs; defendant declared not to be entitled to property; injunction against defendant denied.

D Rajarao S/O D Nagabhushanam Vs D Subashchandra — Property and Title | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH

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DATED THIS THE 13^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON’BLE MR. JUSTICE C.M. POONACHA

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REGULAR SECOND APPEAL NO.5089 OF 2009 (DEC/INJ)

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BETWEEN

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D RAJARAO S/O D NAGABHUSHANAM AGED ABOUT 61 YEARS OCC AGRICULTURE R/O SRINAGAR TQ GANGAVATI DIST KOPPAL

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..APPELLANT

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(BY SRI SHRIHARSH A NEELOPANT, ADVOCATE FOR SRI ARUN L NEELOPANT, ADVOCATE)

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AND

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D SUBASHCHANDRA S/O D NAGABHUSHANAM AGED ABOUT 61 YEARS OCC AGRILCULTURE R/O SRINAGAR TQ GANGAVATI DIST KOPPAL

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…RESPONDENT (BY SRI RAVI S BALIKAI, AND SRI VINEET R BALIKAI, ADVOCATES)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD: 22/11/2008 PASSED IN R.A.NO:3/2008 ON THE FILE OF THE CIVIL JUDGE (SD), GANGAVATHI, DISMISSING THE APPEAL, FILED AGAINST THE JUDGEMENT AND DECREE DTD: 23/1/2008 PASSED IN O.S.NO:69/1997 ON THE FILE OF THE I ADDL. CIVIL JUDGE(SR.DN),

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BELGAUM, DISMISSING THE SUIT FILED FOR DECLARATION AND INJUNCTION AND ETC.

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THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT ON 26.07.2024 COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:-

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CORAM: HON'BLE MR JUSTICE C.M. POONACHA

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CAV JUDGMENT

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The present second appeal is filed under Section 100 of the Code of Civil Procedure, 1908¹ by the plaintiff challenging the judgment and decree dated 22.11.2008 passed in R.A.No.3/2008 by the Senior Civil Judge, Gangavathi² and the judgment and decree dated 23.01.2008 passed in O.S.No.69/1997 by the Additional Civil Judge, Gangavathi³ whereunder the suit for declaration and injunction filed by the plaintiff has been dismissed by the Trial Court which has been affirmed by the First Appellate Court.

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The parties herein are referred to as per their ranking before the Trial Court for the sake of convenience.

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1 Hereinafter referred to as the ‘CPC’

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2 Hereinafter referred to as the ‘First Appellate Court’

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3 Hereinafter referred to as the ‘Trial Court’

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It is the case of the plaintiff that he has purchased

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the suit property from one Kotayya in the year 1978 and since then he has been in possession and enjoyment of the same. That when he went to construct a compound wall, the defendant obstructed to the same. That when the plaintiff went to pay tax, he came to know that the suit property was standing in the name of the defendant. Hence, he filed the suit for declaration of title and for injunction to restrain the defendant from interfering with his possession of the suit property.

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The defendant entered appearance through his counsel and filed written statement denying the case of the plaintiff. It is the contention of the defendant that he has purchased the suit property in the name of his brother Raja Rao - the plaintiff. That the suit property is the exclusive property of the defendant and the plaintiff is not in possession of the same. That when the partition took place among the plaintiff, defendant and their father, the plaintiff executed a Relinquishment Deed, as also affidavit in the

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presence of the notary, and also gave a varadi stating that the suit property was to be mutated in the name of the defendant and thereafter the defendant’s name is entered in the revenue records from 1986-87 till date. That the defendant is paying taxes. Hence, the defendant sought for dismissal of the suit.

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5. Consequent to the pleadings of the parties, the trial Court framed the following issues:

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“1. Whether the plaintiff proves that he is the owner peaceful possession and enjoyment of the suit exclusive schedule property ?

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2. Whether the plaintiff proves the alleged interference ?

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3. Whether the defendant proves that the suit property schedule came to be purchased in the name of the plaintiff by the defendant under circumstances stated in the para No. 16 of W.S. ? as

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4. Whether the defendant proves that the plaintiff has executed Hakku Bidugadeya Patra in favour of the defendant dt: 18/2/1987?

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5. Whether the defendant proves that his name is came to be mutated in panchayath records with regard to the suit schedule property on the strength of application filed by the plaintiff dt: 16/8/1988?

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6. Whether the defendant proves that the suit is improperly valued and court fee paid is improper ?

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7. Whether this court has no pecuniary jurisdiction to try and dispose off the suit ?

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8. Whether the suit is in time?

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9. Whether there is cause of action?

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10. What order or decree?”

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Plaintiff examined himself as PW.1 and two witnesses as PW.2 and PW.3. Exs.P.1 to. P.10 have been marked in evidence. The defendant examined himself as DW.1 and four witnesses as DW.2 to DW.5. Exs.D.1 to D.24 have been marked in evidence.

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The Trial Court by its judgment and decree dated 23.01.2008 dismissed the suit. Being aggrieved, the plaintiff preferred R.A.No.3/2008. The defendant entered appearance before the First Appellate Court and contested the same. The First Appellate Court framed the following points for consideration:

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“1. Whether the plaintiff proves that the finding of the court below, that his non existing title and possession to the suit property, and existing title and possession of the defendant is not correct?

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2. Whether he further proves that the finding of the court below as he is not entitled for the relief of declaration with the consequential relief of injunction is not correct?

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3. What order?”

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The First Appellate Court by its judgment and decree dated 22.11.2008 dismissed the appeal with cost and confirmed the judgment and decree passed by the Trial Court.

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Being aggrieved, the present second appeal is filed by the defendant.

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This Court by order dated 05.08.2011, admitted the above appeal and framed the following substantial questions of law:

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“(i) Whether the court below is justified in dismissing the suit even though Ex.D.24 the alleged relinquishment deed was not registered under the Registration Act?

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(ii) Whether the court below is justified in dismissing the suit only on the basis of the alleged relinquishment deed?”

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Learned counsel for the appellant/plaintiff,

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Sri.Sriharsh Neelopant contends that the plea of the

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defendant that he has purchased the suit property in the

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name of the plaintiff is hit by Section 4(2) of the Benami

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Transactions (Prohibition) Act, 1988⁴ . Further, it is contended that under the Relinquishment Deed (Ex.D.24), the plaintiff is alleged to have relinquished his right in the suit property and the said document admittedly is an un-registered one, and hence, the same cannot be looked into even for collateral purposes. He further contends that in the written statement filed by the defendant in O.S. No.83/1988, the defendant has admitted that the suit property is the absolute property of the plaintiff. That the Vardhi (Ex.D5) is consequential to Ex.D24 and hence, the same will not bind the plaintiff. Hence, he seeks for allowing of the above appeal and granting of the relief sought for.

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Per contra, learned counsel Sri.Ravi S Balikai appearing for the respondent/defendant submits that the property was purchased vide registered Sale Deed dated 25.07.1978 by the defendant in the name of the plaintiff. That the original Sale Deed dated 25.07.1978 was produced

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4 Hereinafter referred to as ‘Act of 1988’

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by defendant which was marked as Ex.D.1 and only a certified copy was produced by the plaintiff which was marked as Ex.P.1. That the original Sale Deed dated 27.01.1967 under which the vendors of the defendant acquired title to the suit property has been produced by the defendant which has been marked as Ex.D.2. That the plaintiff has executed a ‘Hakku Bidugade Kararu Patra’ dated 18.02.1987 (Ex.D.24) whereunder he relinquished his right in the suit property in favour of the defendant. Further, the plaintiff has sworn to affidavit dated 02.05.1987 (Ex.P.4) and varadi dated 16.08.1988 (Ex.D.5) the name of the defendant has been entered in the revenue records. That the PW.1 admits his signature in Ex.D.5.

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Learned counsel for the respondent/defendant

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further contends that Ex.D.24 is not a solitary document on the basis of which the plaintiff has relinquished his right and there are various documents to demonstrate that the defendant is the actual owner of the suit property. That the Trial Court and the First Appellate Court have in detail

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appreciated and re-appreciated the oral and documentary evidence on record while recording concurrent findings and dismissing the suit which ought not to be interfered with in the present appeal. Hence, he seeks for dismissal of the above appeal.

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Both the learned counsels have referred to the oral and documentary evidence on record as well as to certain citations which shall be referred to in the course of this judgment to the extent the same is necessary for the adjudication of the questions that arise for consideration in the present appeal.

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The submissions of both the learned counsels

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have been considered and the material on record has been perused including the records of the Trial Court and First Appellate Court.

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The Trial Court while considering the issues framed by it, has held that there is no document which stands in the name of the plaintiff as on the date of the

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institution of the suit to show that the plaintiff is the absolute owner and possessor of the suit property. Further it has noticed that the original Title Deeds are with the defendant and the plaintiff has sworn to the affidavit (Ex.D.4) as well as given a varadi (Ex.D.5) as also the Relinquishment Deed (Ex.D.24), which discloses that the plaintiff himself has given an application to the Mandal Panchayat, Sriramanagar, wherein he has clearly stated that the suit property be mutated in the name of the defendant, pursuant to which the name of the defendant has been entered in the revenue records pertaining to the suit property which has been continued till date. Further, it is noticed that the plaintiff has not taken any steps or any legal recourse regarding Exs.D.4, D.5 and D.24.

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It is further noticed by the Trial Court that Ex.D.20 is a mutation extract which clearly goes to show that the entries relating to family properties held by the plaintiff and defendant in a partition which is admitted by the plaintiff, except the mutation entry in respect of the suit

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property found in Ex.D.20 in the name of the defendant. That PW.1 has clearly admitted in the cross-examination about the ill-will prevailing between him and the defendant and his brother Krishnarao. The Trial Court noticing the cross-examination of PW.1, has recorded a finding that the plaintiff has admitted about partition of joint family properties between the plaintiff, defendant and his brother along with their father. Further, it has been held that the defendant is in possession and enjoyment of the suit property since the date of the purchase in the year 1978 till date. That the plaintiff’s name is not found in any other records except the original Sale Deed and that the said document is also with the defendant and not with the plaintiff.

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The Trial Court has further recorded a finding that since 1989 the suit property is standing in the name of the defendant and the plaintiff has not produced any documents to show that he is in possession of the property since the date of purchase or even on the date of institution of the

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suit. Hence, the Trial Court held that the plaintiff is not having title or possession of the suit property. Further, the Trial Court comparing the signatures by exercising its power under Section 73 of the Indian Evidence Act, has held that the signatures found in Ex.D.4, D.5 and D.24, vakalath and plaint are similar and that of the plaintiff.

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The Trial Court while considering issue No.8 with regard to the limitation and issue No.9 with regard to cause of action, has held that the name of the defendant is entered in the revenue records from the year 1988-89 with the knowledge of the plaintiff which has been admitted by him in the cross-examination. Hence, it has been held that prior to institution of suit for about ten years, the plaintiff has not produced any documents to show that he has title or possession. Hence, it has recorded a finding that the suit is barred by law of limitation and answered issue Nos.8 and 9 in the negative.

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The First Appellate Court upon re-appreciation of the oral and documentary evidence on record, has considered the contention put forth by the plaintiff that the Relinquishment Deed (Ex.D.24) creates an interest in the immovable property in favour of the defendant and extinguishes the interest of the plaintiff, is a compulsorily registerable document. The First Appellate Court has held that the document is a family arrangement and since the said memorandum itself does not create or extinguish any rights in the immovable property, the document does not require registration as contemplated under Section 17(2) of the Registration Act, 1908⁵ . It is further held that if the portion of Ex.D.24 is taken along with Ex.D.4 and Ex.D.5, it is clear that the suit property belongs to the defendant.

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It is forthcoming from the factual matrix as noticed above that admittedly, the suit property was purchased vide registered Sale Deed dated 25.07.1978, which stands in the name of the plaintiff. It is the

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5 Hereinafter referred to as the ‘Act, 1908’

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contention of the defendant that he is the absolute owner of the suit property and the same has been purchased by him in the name of his brother, the plaintiff and that all the original records are in the custody of the defendant.

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It is the specific defence of the defendant that by virtue of a family arrangement, the plaintiff has executed a Relinquishment Deed (Ex.D24) as also an affidavit dated 02.05.1987 (Ex.D4) and has given a Varadi dated 16.08.1988 (Ex.D5), whereunder the plaintiff has stated that the defendant is the owner of the suit property. However, it is the contention of the plaintiff that the Relinquishment Deed (Ex.D24) is not registered as required under Section 17 of the Registration Act and hence, the same cannot be construed to hold that the plaintiff has in any manner relinquished his rights over the suit property.

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In this context, it is relevant to notice Sections 17 and 49 of the Act of 1908, which state as follows:

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“17. Documents of which registration is compulsory .—(1) The following documents shall be

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registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:—

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(a) x x x x

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(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;

(c) x x x x

(d) x x x x

(e) x x x x

49. Effect of non-registration of documents required to be registered. - No document required by section 17 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882),] to be registered shall-

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(a)affect any immovable property comprised therein, or

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(b)confer any power to adopt, or

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(c)be received as evidence of any transaction affecting such property or conferring such power,

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unless it has been registered:

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Provided that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument.”

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(emphasis supplied)

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It is clear from the aforementioned that the Relinquishment Deed (Ex.D24), which admittedly is not a registered document, cannot be construed as having conveyed any right, title or interest in respect of the suit property. Further, in the absence of registration, the document will not affect any right, title or interest in the immovable property comprised therein.

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It is the vehement contention of the learned counsel for the respondent/defendant that the

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Relinquishment Deed is in fact a family arrangement as has been noticed by the first appellate Court. However, it is relevant to notice that it is not the case of the defendant that the plaintiff is the kartha of the family or that the plaintiff and defendants are the joint owners/co-owners of the suit property. Admittedly, the suit property stands absolutely in the name of the plaintiff by virtue of the registered Sale Deed dated 25.07.1978 (Ex.D1/P1). Having regard to the fact that the suit property absolutely stands in

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the name of the plaintiff, the question of the plaintiff relinquishing his rights in respect of the suit property in favour of the defendant does not arise since the plaintiff and defendant are not co-owners of the suit property and the same does not stand in the joint names of the plaintiff and the defendant. If right, title and interest in the suit property was required to be conveyed to the defendant, it ought to have been done by a registered instrument in compliance of Section 17(1)(b) of the Act of 1908. In the absence of the registration, in terms of Section 49 of the Act of 1908, the said Relinquishment Deed (Ex.D24) cannot be looked into for the purpose of upholding the defence of the defendant that the plaintiff has relinquished his right in the suit property in his favour.

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In the said context, it is relevant to notice the judgment of the Hon'ble Supreme Court in the case of Yellapu Uma Maheswari & Anr. Vs. Buddha

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Jagadheeswararao & Ors⁶ relied upon by the learned

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counsel for the plaintiff, whereunder it has been held as follows:

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“16. ……… Coming to Exhibit B21, date 05/06/1975 which is an agreement between Mahalakashmma, plaintiff/respondent No.1 and defendant No.1/appellant No.1 wherein at Clauses 4 to 6 the recitals pertain to relinquishment of shares between the parties to the agreement. It is stated in the Memorandum, Ext. B 22, that each of them having partitioned the properties by good and bad qualities, have been enjoying the respective properties that fell to their shares, in proof thereof, the Deed of Memorandum is executed. Taking us through the recitals of these two documents, the learned senior counsel tried to impress upon this Court particularly through the last few lines from Exhibit B-21, that these documents are only evidencing the past transaction of partition that has taken place but through these documents no rights in immovable property have accrued to the parties as envisaged under Sec. 17 of the Registration Act and which makes these documents out of the purview of Section 49 of the Registration Act.

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17. It is well settled that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. A thorough reading of both Exhibits B-21 and B-22 makes it very clear that there is relinquishment of right in respect of immovable property through a document which is compulsorily registerable document and if the same is not registered, becomes an inadmissible document as envisaged under Section 49 of the Registration Act. Hence, Exhibits B-21

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6 2016 SAR (Civil) 226

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and B-22 are the documents which squarely fall within the ambit of section 17 (i) (b) of the Registration Act and hence are compulsorily registerable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. We are of the considered opinion that Exhibits B 21 and B22 are not admissible in evidence for the purpose of proving primary purpose of partition.”

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(emphasis supplied)

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Learned counsel for the respondent/defendant relies upon a coordinate Bench judgment of this Court in the case of Smt Shantawwa & Others v. Smt Neelawwa and Others⁷ and contends that a family arrangement which has been recorded does not require registration. It is further contended that the affidavit (Ex.D4) and varadi (Ex.D5), both of which have been executed by the plaintiff clearly disclose the family arrangement. It is further contended that there is reference of Ex.D24 in Ex.D5. Hence, it is contended that transfer of property from the plaintiff to the defendant vide Ex.D24 being in the nature of a family arrangement, the same does not require registration. It is further contended that the affidavit in

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7 Judgment dated 22.08.2024 passed in RSA No. 5332/2010

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detail sets out the understanding between the parties and it has also been noticed in the varadi (Ex.D5), which has been given by the plaintiff himself and that PW.1 in his crossexamination admits his signature in Ex.D5.

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In this context, it is relevant to note that transfer of rights in respect of the suit property is contemplated by virtue of execution of Relinquishment Deed (Ex.D24). The affidavit (Ex.D4) and varadi (Ex.D5) are only consequential to Ex.D24. Having regard to the legal position as noticed above, since transfer of right, title or interest in respect of the suit property by virtue of the Relinquishment Deed (Ex.D24) cannot be recognized under law, the question of the defendant asserting right, title and interest in respect of the suit property by virtue of the affidavit (Ex.D4) and varadi (Ex.D5) does not arise. Hence, the said contention put forth on behalf of the respondent/defendant is liable to be rejected.

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The judgment of the coordinate Bench of this Court in the case of Smt Shantawwa⁸ also will not aid the case of the defendant since in the said case, the property was admittedly a joint family property, which is not so in the present case.

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The Trial Court relying upon Ex.D4 and Ex.D5 as also the fact that all the original documents were with the defendant and noticing the contention of the defendant that there was a partition of joint family properties, dismissed the suit. The first appellate Court also has held that by virtue of Ex.D24, D4 and D5, the suit property has been conveyed by the plaintiff to the defendant by virtue of a family arrangement. The said findings are ex facie erroneous and contrary to the legal position as noticed above having regard to the admitted position that the Relinquishment Deed (Ex.D24) is not registered, as also the fact that the suit property is not the joint family property.

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In view of the legal position as noticed above, it is clear that the plaintiff is the absolute owner of the suit property and is entitled to the relief of declaration as sought for in the plaint.

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With regard to possession, it is relevant to note that although the suit property stood in the name of the plaintiff, the same having been purchased vide registered Sale Deed dated 25.07.1978 (Ex.P1). The Trial Court has recorded a finding of fact that since the date of purchase, the taxes are paid in the name of the defendant and the records stand in the name of the defendant. The Trial Court has further recorded a finding that from the year 1988-89, the plaintiff‘s name is not found in the revenue records which has been admitted by PW.1 in the cross examination.

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With regard to the possession, it is the contention of the learned counsel for the appellant-plaintiff that the basis of the entries in the revenue records being relinquishment deed/Hakku Bidugade Kararu Patra (Ex.D24)

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and the same not having been registered, it is required to be held that the plaintiff is in possession of the suit property. In the said context, it is relevant to note that both the Courts have recorded a concurrent finding that the revenue records never stood in the name of the plaintiff eversince the date of purchase and the said records were in the name of the defendant. Further, the defendant has produced documentary material to demonstrate that he has also paid taxes in respect of the suit property. The plaintiff is not produced any material either oral or documentary to demonstrate that he is in possession of the suit property. Hence, the plaintiff has failed to demonstrate that he is entitled to the relief of injunction as sought for in the plaint.

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In view of the findings as aforementioned, it is not necessary to consider the contention of the plaintiff regarding the defence of the defendant hit by Section 4 of the Act of 1988.

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Hence, the substantial question of law Nos.1 and 2 are answered in the negative.

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In view of the discussion made above, the suit of the plaintiff seeking for declaration is liable to be decreed. However, the plaintiff is not entitled to the relief of injunction since he has failed to prove his possession of the suit property. It shall be open for the plaintiff to initiate appropriate proceedings against the defendant for recovery of possession in accordance with law and if such proceedings are initiated, it shall be open to the defendant to take all such defences permissible under law.

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37. Hence, the following:

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ORDER

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i) The above appeal is allowed.

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ii) The judgment and decree dated 23.01.2008 passed in O.S.No.69/1997 by the I Additional Civil Judge (Sr.Dn.), Belgaum and the judgment and decree

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dated 22.11.2008 passed in R.A.No.3/2008 by the Civil Judge (SD), Gangavathi are hereby set aside;

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iii) The suit in O.S.No.69/1997 on the file of the I Additional Civil Judge (Sr.Dn.), Belgaum, is partly decreed with costs and it is declared that the plaintiff is the absolute owner of the suit property. The relief of injunction sought for by the plaintiff is rejected.

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Sd/(C.M. POONACHA) JUDGE

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Sh/BS/ND

D Rajarao S/O D Nagabhushanam v. D Subashchandra

Case brief

What is this about?

What did the court decide?

D Rajarao S/O D Nagabhushanam v. D Subashchandra

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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