Sri M R Lakshmanachari Vs Sri K P Narayanaswamy

SRI M R LAKSHMANACHARI S/O SRI RAMACHARI AGED ABOUT 55 YEARS R/AT NO.1857/5, 2^ND CROSS 4^TH WARD, PRASHANTHANAGAR CHIKKABALLAPURA TOWN AND DISTRICT-562101

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…APPELLANT

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(BY SRI VIKRAM BALAJI,ADVOCATE) AND:

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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SRI K P NARAYANASWAMY S/O LATE PILLAIAH AGED ABOUT 62 YEARS R/AT NO.1857/5, 2^ND CROSS 4^TH WARD, PRASHANTHANAGAR CHIKKABALLAPURA TOWN AND DISTRICT-562101

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…RESPONDENT

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(BY SRI M S ASHWATH REDDY, ADVOCATE)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 19.04.2025 PASSED IN R.A.NO.109/2024 ON THE FILE OF I ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHIKKABALLAPURA AND ETC.

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NC: 2025:KHC:49676 RSA No. 1065 of 2025

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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This second appeal is filed against the concurrent finding

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of the Trial Court and the First Appellate Court.

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This matter is listed for admission. Heard the

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learned counsel appearing for the respective parties.

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The factual matrix of the case of the plaintiff before the Trial Court is that the property originally belongs to the defendant and defendant sold the property in favour of one Chaithra in the year 2006 i.e., ‘A’ schedule property and subsequently, the very same Chaithra sold the property in favour of the plaintiff vide registered sale deed dated 29.01.2010 and thereafter, all the revenue records are also changed in the name of the plaintiff and defendant also aware of the same. It is the case of the plaintiff that in the month of January 2010, the defendant has requested the plaintiff to stay for few days and defendant has entered into the said portion with the permission of the plaintiff measuring an extent of

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north to south 10 feet and east to west 35 feet, totally, measuring 350 feet which is more fully described in the ‘B’ schedule property. It is also the contention of the plaintiff that the defendant had filed a suit in O.S.No.113/2012 against his vendor and also against the plaintiff and the same was decreed and against the judgment the of Trial Court, an appeal was also filed in R.A.No.105/2020 and the same also dismissed. Thereafter, notice was issued against the defendant to quit and vacate the suit schedule property but the defendant did not vacate the same. Hence, filed the suit.

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In pursuance of the suit summons, the defendant appeared and filed the written statement denying all the averments made in the plaint. It is contended by the defendant that defendant acquired the suit property through a registered sale deed dated 19.02.2000 from his legal vendor and all the Municipal records stands in the name of the defendant and defendant is enjoying the property as an absolute owner. It is also contended that defendant availed a loan of Rs.1,40,000/from Karnataka Housing Board, Chikkaballapura by mortgaging the said property for his family and legal necessities. The

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defendant also availed a loan of Rs.4,14,000/- from the plaintiff and for the security of the said loan amount, the defendant has executed a nominal sale deed dated 20.07.2006 in favour of the plaintiff. It is further contended that when the plaintiff and K P Narayanaswamy tried to obstruct the possession and enjoyment of the defendant with respect to the said property, defendant has filed a suit in O.S.No.113/2012 and the said suit was decreed and against the said decree, the plaintiff and Narayanaswamy have preferred an appeal in R.A.No.105/2020 and the same is pending before the Court. It is further contended that a criminal case is filed against the defendant in C.C.No.450/2013 and Special Case No.41/2012 and the same is disposed of by acquitting the defendant for the alleged offences by the plaintiff and Narayanaswamy Further, in Special Case No.41/2012, defendant being a witness has given evidence and admitted the sale deed executed by the defendant in favour of the plaintiff and also admitted that the defendant will return back the amount. The plaintiff is going to execute the sale deed in favour of defendant. The defendant has approached the plaintiff on number of occasions to execute the sale deed. But the plaintiff with the collusion and instigation of

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Narayanaswamy postponed the same for one or the other reasons. The defendant has caused legal notice to the plaintiff and Narayanaswamy through his counsel on 12.03.2021 directing the plaintiff to comply with the terms of legal notice. The plaintiff and Narayanaswamy with collusion have evaded the service of legal notice. It is further contended that they have been trying to interfere with defendant’s peaceful possession and enjoyment of the suit schedule property and trying to dispossess the property. A case is also filed in O.S.No.231/2011 and the same is pending for consideration. The conduct of plaintiff clearly depicts that by knowing all the facts, has filed this false and frivolous suit suppressing the material facts and the plaintiff has no any right over the property and cannot seek for the relief of possession.

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The Trial Court considering the pleadings of the

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parties, framed the Issues and allowed the parties to lead their evidence. The Trial Court having considered both oral and documentary evidence placed on record, comes to the conclusion that defendant has taken the defence that he is the absolute owner of the property and acquired the same through

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a registered sale deed dated 19.02.2000 and availed a loan from housing board mortgaging the property and also availed a hand loan of Rs.4,14,000/- from the plaintiff and for the security, executed the sale deed in favour of the plaintiff. The Trial Court having taken note of evidence and also the pleadings particularly, taken note of admission on the part of DW1 who has been examined before the Court and the same is extracted in paragraph 17 and statement made before the police and also the certified copy of the mahazar and also the judgment and decree. Apart from that suit was filed earlier for the relief of permanent injunction and not filed any suit for declaration and also taken note that the Chaithra, who is the vendor of plaintiff has acquired the suit schedule ‘A’ property through a registered sale deed dated 20.07.2006 from the defendant. Though, it is contended that it was a loan transaction and not sale transaction, having considered both oral and documentary evidence placed on record that is recital of the sale deed, comes to a conclusion that property was sold for sale consideration and in turn the said Chaithra also sold the same in favour of the plaintiff.

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DW1 also during the course of cross-examination admitted that plaintiff has filed the present suit in respect of house property in order to vacate the scheduled premises measuring 10 x 35 feet. Further, deposes that he does not know what are all the documents produced by the plaintiff and also taken note of the earlier judgment and decree. The Trial Court held that said sale deed was not challenged by the defendant and recital of Ex.P33 clearly goes to show that on the date of sale, the defendant herein has handed over the possession of the suit schedule property in favour of the said Chaithra. Hence, the theory of borrowed a sum of Rs.4,00,000/- from said Chaithra and for the security, executed the document was not accepted. The admission on the part of DW1 is also extracted in paragraph 23 and so also in paragraph 25. During the course of cross-examination of DW2 who has been examined before the Court also admitted regarding possession is concerned. Though DW2 has deposed in his evidence that defendant has acquired the suit schedule property through a registered sale deed dated 19.02.2000 and executed the document in favour of Chaitra in terms of Ex.P33 and also judgment and decree is only in respect of permanent

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injunction. The observation made in the appeal is very clear that admittedly the plaintiff is in settled possession of the suit property and cannot be dispossessed without any due process of law. Taking note of all these factors into consideration, directed the defendant to quit and deliver the possession of the property by granting the relief with respect to ‘B’ schedule property.

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Being aggrieved by the judgment of the Trial Court, an appeal was preferred before the First Appellate Court in R.A.No.109/2024. The First Appellate Court also having considered the grounds urged in the appeal memo, formulated the Points and having reassessed both oral and documentary evidence placed on record comes to the conclusion that it is very clear that the plaintiff has purchased the property from the said Chaithra and though defendant contended that it was only a loan transaction between Chaithra and defendant, in order to prove the same, not examined the said Chaithra before the Trial Court. The judgment and decree which was obtained in O.S.No.113/2012 is only for the relief of permanent

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injunction since the defendant established his possession over the property.

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It is undisputed fact that plaintiff has filed a private complaint against the defendant alleging cheating in Crime No.47/2012 and also case was registered in criminal case. the First Appellate Court also taken note of Ex.D15 deposition of PW6 Chaithra recorded on 16.10.2015 in C.C.No.450/2013. It

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is very clear that the husband of the Chaithra actively participated in the transaction between the defendant and Chaithra. Further, an observation is made that Chaithra admitted the borrowing of loan of Rs.4,00,000/- for repair of house by the defendant and for the purpose of said monetary transaction, obtained the sale deed and defendant actually agreed to repay the loan and executed the sale deed. The plaintiff has also not subjected for cross-examination PW6Chaithra in the said criminal case and her evidence is not tested by the plaintiff by way of cross-examination. Also an observation is made that the evidence of Chaithra in the criminal case cannot be treated as admission in the civil suit of the plaintiff. The First Appellate Court also taken note of

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admission on the part of DW1 and also the pleadings made in O.S.No.113/2012 with regard to the execution of nominal sale deed and not sought for cancellation of the said nominal sale deed on the ground of fraud and misrepresentation and only sought for permanent injunction. On re-appreciation of all these materials comes to the conclusion that the judgment and decree passed in O.S.No.113/2012 will not come in the way of passing the judgment and decree, when sale deed made in favour of the Chaithra was not challenged and in turn, the said Chaithra sold the property in favour of the plaintiff. Hence, confirmed the judgment of the Trial Court. Being aggrieved by the concurrent finding of both the Courts, the present second appeal is filed before this Court.

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The learned counsel appearing for the appellant in this second appeal would vehemently contend that both the Courts committed an error in not properly appreciating the material on record and erroneously held that the sale deed was not challenged. Both the Courts misapplied the observations made in O.S.No.113/2012 and also in R.A. No.105/2020 and failed to appreciate the material on record in a proper

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perspective. Hence, it is a clear case to invoke Section 100 of CPC since Chaithra was not executed the sale deed and the sale transaction between the Chaithra and defendant is only a nominal sale deed. Hence, the very approach of both the Courts requires interference.

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Per contra, the learned counsel appearing for the respondent would vehemently contend that the Trial Court has taken note of the recitals of document of Ex.P33 wherein it is a complete sale deed and not a conditional sale or nominal sale deed. In turn, the said Chaitra executed a sale deed in favour of the plaintiff. The specific cases of the plaintiff also that defendant is in permissive possession in respect of the suit ‘B’ schedule property is concerned. There is a specific pleading and also the evidence and the same has been considered and Trial Court also extracted the admission of the part of DW1 and DW2 in the cross examination and hence, the Trial Court not committed any error in decreeing the suit of the plaintiff and the First Appellate Court also considered both oral and documentary evidence placed on record in a proper

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perspective. Hence, it does not require any interference of this Court.

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Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record, it discloses that originally, the property belongs to the defendant and he sold the property in favour of Chaithra in 2006. the records also reveals that sale deed was executed in favour of the plaintiff in 2010 by Chaithra. It is also important to note that defendant has delivered the possession in favour of the vendor of the plaintiff when the sale deed was executed in the year 2006. Defendant contended that it was only a nominal sale deed and he is in possession of the property as owner of the property. All the documents clearly discloses that title flows in favour of Chaithra and in turn Chaithra executed the sale deed in favour of the plaintiff. Hence, I do not find any error on the part of the Trial Court in considering the material on record. The Trial Court also extracted the admission on the part of DW1 and DW2. The First Appellate Court also re-appreciated the material on record considering both oral and documentary evidence placed on record and also taken note of the earlier

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judgment and decree passed in favour of the defendant in O.S.No.113/2012 and the same is only for protecting the possession of the defendant and evicting the appellant under due process of law. Subsequently, notice was issued and thereafter filed the suit. Thus, both the Courts have considered material on record in a proper perspective. Hence, I do not find any grounds to admit the appeal and to frame substantial question of law invoking Section 100 of CPC.

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