Dismissed

Sri Venkategowda v. Sri M Shanthakumar

Karnataka HC6 Mar 2024WP/36563/2019

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a writ petition challenging an order allowing defendants to recall a witness to mark an unregistered exchange agreement. The court held that such an agreement required no mandatory registration for this limited purpose.

What did the court decide?

Defendants were permitted to recall a witness to mark an unregistered exchange agreement for the limited purpose of establishing possession.

Sri Venkategowda Vs Sri M Shanthakumar — Contract and Commercial Disputes | Karnataka HC (2024)

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1 - NC: 2024:KHC:9585 WP No. 36563 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ

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WRIT PETITION NO. 36563 OF 2019 (GM-CPC)

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BETWEEN:

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SRI. VENKATEGOWDA S/O LATE SANNAPPA, AGED ABOUT 66 YEARS, R/A CHIKKARALAGERE VILLAGE, SULIBELE HOBLI, HOSAKOTE TALUK BANGALORE RURAL DISTRICT-562114.

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…PETITIONER

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(BY SMT. VINITA J.D., ADVOCATE FOR SRI. H. DEVENDRAPPA, ADVOCATE)

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AND:

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Digitally signed by BS RAVIKUMAR Location: HIGH COURT OF KARNATAKA

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SRI. M. SHANTHAKUMAR S/O LATE MUNEGOWDA AGED ABOUT 45 YEARS

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SRI. M. MANJUNATHA S/O LATE MUNEGOWDA, AGED 39 YEARS, R/A CHIKKARALAGERE VILLAGE, SULIBELE HOBLI, HOSAKOTE TALUK, BANGALORE RURAL DISTRICT.

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…RESPONDENTS

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(BY SRI. AJAY R.A., ADVOCATE)

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THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER PASSED IN O.S.NO.231/2011 VIDE ANENXURE-H DATED 06.06.2019

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NC: 2024:KHC:9585 WP No. 36563 of 2019

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PASSED ON THE FILE OF THE ADDL. CIVIL JUDGE AND JMFC HOSAKOTE AND APPLICATION FILED UNDER SECTION 151 OF CPC TO REOPEN THE CASE AND APPLICATION UNDER ORDER 18 RULE 17 OF CPC TO RECALL DW1 TO LEAD FURTHER EVIDENCE AND ETC.,

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The plaintiff in O.S.No.231/2011 on the file of the Additional Civil Judge and JMFC, Hosakote, has filed this petition challenging an order dated 06.06.2019, by which, the applications filed by the defendant Nos.1 and 2 under Order XVIII Rule 17 read with Section 151 and Section 151 of Civil Procedure Code were allowed.

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The suit in O.S.No.231/2011 was filed for declaration and recovery of possession of an agricultural land bearing Sy.No.84/3 measuring 13½ guntas situated at Chikkaralagere village, Sulibele Hobli, Hosakote Taluk, Bengaluru Rural District.

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The defendant No.1 contested the suit and claimed

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that he was placed in possession of the suit property by virtue of an unregistered exchange deed. When the suit was set down

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3 - NC: 2024:KHC:9585 WP No. 36563 of 2019

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for cross-examination of DW.1, applications were filed by defendant No.1 to recall DW.1 for further chief-examination. It was stated in the affidavit accompanying the applications that the case was posted before the Court to hear on the unregistered exchange deed on 08.12.2014 and subsequently, on the directions of the Court, the District Registrar had collected the duty and penalty on 06.12.2017. He claimed that the said exchange deed was not marked inadvertently and therefore, sought for permission to recall DW.1 to mark the said exchange deed. Though these applications were opposed by the plaintiff, the Trial Court allowed the applications and permitted the defendant No.1 to mark exchange deed on payment of cost of Rs.500/-. Being aggrieved by the said order the plaintiff has filed this petition.

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The learned counsel for the plaintiff contended that the exchange deed which the defendants intend to mark is not registered and therefore, no purpose would be served in recalling DW.1 for further examination. She contends that mere payment of duty would not sanctify the document to be marked in evidence, in view of Section 49 of Registration Act 1908.

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NC: 2024:KHC:9585 WP No. 36563 of 2019

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Thus, she contends that the Trial Court committed an error in allowing the applications.

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Per contra, the learned counsel for the defendant No.1 contended that the exchange deed was not a concluded transaction, in as much as, it was an agreement between the parties to exchange the properties between them. He contends that an agreement to exchange is not compulsorily registerable under Section 17 of the Registration Act, 1908 and therefore there was no impediment for the Court to mark the agreement of exchange in evidence. He further contends that the plaintiff also admitted that the defendant No.1 was in possession of the property and therefore, he submits that in order to prove that his possession of the property was not unauthorized, but was under the agreement of exchange entered into between them, the agreement deserved to be admitted in evidence to prove the aspect of possession of defendant No.1 in the suit schedule property.

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I have considered the submissions made by the learned counsel for the petitioner and learned counsel for the respondent.

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NC: 2024:KHC:9585 WP No. 36563 of 2019

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A perusal of the document sought to be marked in evidence discloses that it is merely an agreement to exchange the property between the plaintiff and defendant No.1. There is a reference in the exchange agreement that the defendant No.1 was placed in possession of the suit property.

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Therefore, as rightly contended by the learned counsel for the defendant No.1, this document did not require registration under Section 17 of the Registration Act, as it did not confer any title on the defendants. Since the document did not require to be compulsorily registered, there was no impediment for marking the said document only for the limited purpose of establishing that the defendant No.1 was placed in possession of the suit schedule property under the said agreement of exchange. Consequently, the Trial Court was justified in permitting the defendant No.1 to mark the said exchange deed in evidence. There is no error committed by the Trial Court in doing so warranting interference by this Court and therefore, this writ petition is dismissed.

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However, it is made clear that mere marking of a

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document does not confer any title on the defendants and it is

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NC: 2024:KHC:9585 WP No. 36563 of 2019

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open for the Trial Court to decide the relief of declaration sought by the plaintiff based on the averments made in the plaint as well as oral and documentary evidence adduced

before it.

Sd/JUDGE

List No.: 1 Sl No.: 22

Sri Venkategowda v. Sri M Shanthakumar

Case brief

What is this about?

What did the court decide?

Sri Venkategowda v. Sri M Shanthakumar

Case brief

What is this about?

What did the court decide?

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