Smt Bharathishetty Vs Smt Kamalamma

THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 7.12.2012 PASSED IN R.A.NO.8/2010 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE, & JMFC, SAGAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 19.12.2009 PASSED IN OS.NO.26/2009 ON THE FILE OF ADDITIONAL CIVIL JUDGE (JR.DN.), SAGAR.

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

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CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 07.12.2012 passed in RA No.8/2010 by the learned Additional Senior Civil Judge, Sagar ('First Appellate Court' for short), and the judgment and decree dated 19.12.2009 passed in OS No.26/2009 by the learned Additional Civil Judge (Junior Division), Sagar ('Trial Court' for short).

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For convenience, the parties are referred to based on their rankings before the Trial Court. The appellant was the defendant and the respondent was the plaintiff.

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Brief facts leading rise to the filing of this appeal are as follows:

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The plaintiff filed a suit for declaration to declare that the plaintiff is the absolute owner in possession of the suit schedule property EBGF which

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is part and parcel of the property shown as ABCD in the rough sketch and also sought for permanent injunction. The plaintiff's husband namely Sri. K.M.Lingappa was a spendthrift. He was also an active Politician. He stood as a guarantor to one Sri. K.L.Chowdappa. The borrower and guarantor could not repay the loan obtained by the borrower i.e., K.L.Chowdappa. A suit came to be filed against the husband of plaintiff, K.M.Lingappa, and K.L.Chowdappa in OS No.40/1974. The said suit was decreed. An execution petition was filed in Ex.No.170/1982, in which the entire ABCD property was attached and sold in the auction proceedings. Sri. N.Sridhara Kumar was the auction purchaser. He was the highest bidder. The auction bid was confirmed in favour of N.Sridhara Kumar. The plaintiff was the sole daughter of Late Venkatappa of Gadag, approached Sridhara and requested to convey the suit schedule property in her favour.

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Plaintiff's father had given to the plaintiff, his wife's gold and silver articles and also his savings during 1984. The plaintiff was able to mobilize the sum of Rs.6,000/- and purchased the property ABCD from N.Sridhara Kumar under a registered sale date dated 28.06.1984. Based on the said registered sale deed, khata was transferred in the name of the plaintiff. During the last week of February 2000, the defendant came near the sheep shed and attempted to break open the door fixed. The plaintiff resisted. On verification, the plaintiff learnt that, the defendant filed a suit in OS No.105/1998 on the file of the learned Principal Civil Judge (Junior Division), Sagar against K.M.Lingappa and obtained an injunction in respect of the property identified as EBGF i.e., suit schedule property and she made an attempt to dispossess the plaintiff by illegal means. The plaintiff was constrained to file a suit for injunction against the defendant in

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OS No.63/2000. However, the said suit was withdrawn and the plaintiff filed the present suit on the file of the Trial Court for declaration of title and permanent injunction. Accordingly, prays to decree the suit.

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The defendant filed a written statement denying the averments made in the plaint and contended that, the defendant had purchased the property from K.M.Lingappa under a registered sale deed dated 10.09.1986, and she became the absolute owner of the suit schedule property by virtue of the said sale deed and the defendant is in peaceful possession and enjoyment of the suit schedule property. It is contented that, the plaintiff is not the owner in possession of the suit schedule property and the auction purchaser had not acquired any right, title or interest over the suit schedule property. There is no cause of action for the plaintiff to file the present

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suit. The cause of action shown in the suit are false and imaginary. Hence, prays to dismiss the suit.

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Based on the pleadings of the parties, the Trial Court framed the following issues:

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" 1. �ಾ�ಯು �ಾನು �ಾ�ಾ µÉಡೂ�� ¸ÀévÀÄÛ ಅಂದ�ೆ E.B&F ನ �ಾ�ೕಕಳ� ಮತು� �ಾ��ೕನ�ಾರಳ� ಎಂದು �ಾ�ೕತು ಪ!ಸು�ಾ�#ೆ$ೕ?

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%ೆ.ಎಂ.�ಂಗ¥Àà ಅವ()ೆ �ಾ�ಾ �ೊ*�ನ�+ ಏನೂ ಹ./®è¢zÀÝ(ಂದ ¥Àæ*�ಾ�)ೆ �ಾ�ಾ �ೊ*�)ೆ ಸಂಬಂಧಪlÖ ಖ(ೕ� ¥ÀvÀæದ ಮೂಲಕ �ಾ�ಾಟ �ಾ!zÀÝ(ಂದ ¥Àæ*�ಾ�)ೆ ಏನೂ ಹಕು/ 5�ಾಸ.� ಬಂ�®è ಎಂದು �ಾ� ರುಜು�ಾತು ಪ!7ರುವ#ೇ?

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¥Àæ*�ಾ� �ಾ�ಾ �ೊ*�ನ ತ£Àß �ಾ�8ೕ9ಾನುಭವ%ೆ/ �ೊಂದ�ೆ %ೊಡು* � ಾ;#ೆಂದು �ಾ� ರುಜು�ಾತು ಪ!7ರುವ#ೇ?

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�ಾ� �ಾ�ಾ ಪ(<ಾರಗಳನು= ಪ>ೆಯಲು CºÀð?�ಾ;#ೆ$ೕ?

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ಏನು !.@ Aಾ ಆ�ೇಶ ?"

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The plaintiff, to substantiate her case, examined her power of attorney holder as PW-1 and marked 21 documents as Exs.P1 to P21. In rebuttal, the defendant examined herself as DW-1 and marked seven documents as Exs.D1 to D7.

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The Trial Court, after recording the evidence, hearing both sides and assessing the verbal and documentary evidence, answered issues No.1 to 4 in the affirmative, issue No.5 as per the final order, and the suit of the plaintiff was decreed, declaring that the plaintiff is the absolute owner in possession of the suit schedule property. The defendant, her men and her agents were restrained from interfering in the peaceful possession and enjoyment of the plaintiff over the suit property by way of permanent injunction.

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The defendant, aggrieved by the judgment and decree passed in OS No.26/2009, preferred an appeal in RA No.8/2010 on the file of the First Appellate Court. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration:

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"1) Whether Respondent / plaintiff proves that since her husband K.M. Lingappa

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had no title in the suit property defendant has not acquired any valid title of the suit property by virtue of the sale deed dated 10-09-1986 executed by K.M. Lingappa?

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2) Whether respondent/ plaintiff proves her possession of the suit property as on the date of suit?

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3) Whether judgment and decree dated 19-12-2009 passed by learned Addl.Civil.Judge (Jr.Dn) Sagar in O.S.No.26/2009 is opposed to law, factual aspects, pleadings and oral as well as documentary evidence of parties?

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4) What decree or order?"

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The First Appellate Court, after re-appreciating the entire evidence on record, answered points No.1 and 2 in the affirmative, point No.3 in the negative and point No.4 as per the final order. The appeal was dismissed vide judgment dated 07.12.2012 and the judgment and decree passed by the Trial Court was confirmed.

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The defendant, aggrieved by the impugned judgments, filed this regular second appeal.

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Heard the arguments of the learned counsel for the defendant and the learned counsel for the plaintiff.

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Learned counsel for the defendant submits that, the Trial Court has not framed issue regarding the partition and also submits that, no documents were produced to show that the auction was confirmed. He also submits that, as of the date of auction, the auction purchaser was not having any right, title or interest over the suit schedule property. He submits that, the auction took place pertaining to the other properties and not regarding the suit property and the defendant filed a suit in OS No.160/1999 for permanent injunction against the husband of the plaintiff and the said suit was decreed against him and neither the plaintiff nor the husband of the plaintiff has challenged the same, and hence, it has

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attained the finality. He submits that, the plaintiff's husband got the title over the suit property only on 25.07.1983. The defendant had purchased the said property on 10.09.1986. He submits that, both the Courts below have not properly considered the material placed on record and committed an error in passing the impugned judgments. Hence on these grounds, prays to allow the appeal.

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Per contra, learned counsel for the plaintiff submits that, one K.L.Chowdappa had obtained the loan and K.M.Lingappa stood as a guarantor to the said loan. The borrower K.L.Chowdappa had committed a default, as such, a suit for recovery of money was filed in OS No.40/1974 and the said suit was decreed and an execution petition was filed. In the said execution petition, the suit schedule property was put in auction and N.Sridhara Kumar was the highest bidder. Sale was confirmed in favour of the auction purchaser i.e., N.Sridhara Kumar. He submits that,

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N.Sridhara Kumar sold the said property in favour of the plaintiff on 28.06.1984. He submits that, as of the date of execution of a registered sale deed in favour of the defendant, the vendor was not the owner of the suit schedule property and hence, no title was passed in favour of the defendant. He submits that, both Courts below have rightly passed the impugned judgments. Hence, on these grounds, he prays to dismiss the appeal.

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Perused the records and considered the submissions of the learned counsel for the parties.

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This Court, vide order dated 21.11.2014, admitted the appeal to consider the following substantial question of law:

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"Whether the finding of the trial Court with regard to the contention of the appellant that title on the suit property did not pass on to auction purchaser N.Sridhara Kumar, is perverse?"

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Reg. Substantial question of law :

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There is no dispute that the suit property was owned and possessed by K.M.Lingappa, and K.L.Chowdappa had obtained the loan. The said K.M.Lingappa stood

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as a guarantor for the loan obtained by K.L.Chowdappa. K.L.Chowdappa committed a default. A suit for recovery of money was filed against K.M.Lingappa and K.L.Chowdappa in OS No.40/1974. The said suit was decreed.

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The decree holder filed an execution petition in Ex.No.170/1982. The entire area shown as ABCD in the plaint rough sketch was attached and sold in the auction proceedings held on 20.04.1983. N.Sridhara Kumar was the highest bidder and accordingly the bid was confirmed and sale certificate was issued in favour of N.Sridhara Kumar.

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The plaintiff approached the auction purchaser to convey the suit schedule property in her favour. The

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auction purchaser, N.Sridhara Kumar had agreed to convey the suit schedule property in favour of the plaintiff. Accordingly, the auction purchaser has conveyed the suit schedule property in favour of the plaintiff on 28.06.1984 as per the registered sale deed 28.06.1984. Based on the registered sale deed, the name of the plaintiff was entered in the revenue records.

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In the last week of February 2000, the defendant came to the suit property and tried to enter the shed by opening the lock and door. At that time, the plaintiff learnt that the defendant had filed a suit in OS No.105/1988 against the husband of the plaintiff for perpetual injunction and the said suit was decreed. Thereafter, the plaintiff filed a suit in OS No.63/2000 for relief of permanent injunction and thereafter, the plaintiff has withdrawn the said suit and filed a suit for declaration of title and permanent injunction.

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The plaintiff, to substantiate her case, her power of attorney holder was examined as PW-1. He reiterated the plaint averments in the examinationin-chief and produced the documents. Ex.P1 is the power of attorney, which discloses that the plaintiff authorised PW-1 to depose on behalf of the plaintiff. Ex.P2 is the sketch. Ex.P3 is the assessment list extract. Ex.P4 is the DR extracts. Ex.P5 is the original registered sale deed which discloses that N.Sridhara Kumar had executed a registered sale deed in favour of the plaintiff on 28.06.1984 and delivered the possession of the suit schedule property in favour of the plaintiff. Ex.P6 is the notice issued by TMC, Sagar. Ex.P7 is another notice issued by TMC, Sagar. Ex.P8 is the sale deed. Ex.P9 is the certified copy of the order sheet in Ex.No.170/1982, which discloses that Executing Court has ordered to auction the suit schedule property. Ex.P10 is the execution petition. Ex.P11 is Form No.26. Ex.P12 is

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the proclamation of the sale and its report. Exs.P13

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to P21 are the photographs.

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Defendant examined herself as DW-1. She reiterated the written statement averments in the examinationin-chief and produced the documents. Ex.D1 is the certified copy of the plaint in OS No.96/1994 filed by the original owners for partition and separate possession. Ex.D2 is the certified copy of the valuation slip. Ex.D3 is the written statement filed in OS No.96/1994. Exs.D4 and D5 are the certified copies of the judgment and decree passed in OS No.96/1994. Exs.D6 and D7 are the certified copies of the depositions. From the perusal of the entire records, it clearly discloses that originally the suit property was owned and possessed by K.M.Lingappa, who stood as a guarantor for the loan obtained by K.L.Chowdappa. K.L.Chowdappa committed a default

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and a suit for recovery of money was filed in OS No.40/1974. The said suit was decreed. Neither

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K.L.Chowdappa nor K.M.Lingappa had paid the decreetal amount. The decree holder filed an execution petition in Ex.No.170/1982. In the said execution petition, the Executing Court passed an order of auction to the property shown as ABCD in rough sketch, which includes the suit schedule property. In the said auction, one N.Sridhara Kumar was the highest bidder and the sale was confirmed in favour of N.Sridhara Kumar. After the confirmation of sale in favour of N.Sridhara Kumar, the brother of K.M.Lingappa filed a suit in OS No.96/1994 for declaration to declare that the brother of K.M.Lingappa was the owner of B schedule property and to set aside the auction sale dated 23.07.1983 before the Munsiff Court, Sagar. The Trial Court, after recording the evidence in OS No.96/1994, decreed the suit declaring that the plaintiff therein is the absolute owner of the 'B' schedule property holding that the auction proceedings dated

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23.07.1983 in Ex.No.170/1982 and the sale deed dated 28.06.1984 executed by defendant No.3 therein in favour of defendant No.2 therein are not binding on the plaintiff therein and the same are set aside in respect of 'B' schedule property therein and rejected the relief of injunction. The Trial Court extracted the 'B' schedule property in OS No.96/1994 and the suit schedule property in the instant case and compared both the boundaries of the both properties and held that the 'B' schedule property in OS No.96/1994 and the present suit schedule property are not one and the same and also recorded a finding that the sale deed dated 28.06.1984 was not set aside in respect of the suit schedule property. It was set aside only in respect of 'B' schedule property in OS No.96/1994. The sale executed on 28.06.1984 in respect of the present suit schedule property is retained. The Trial Court, considering the registered sale deed dated 28.06.1984 has held that

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the plaintiff herein is the absolute owner of the suit

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schedule property, and further held that K.M.Lingappa had no right to alienate the suit schedule property in favour of the defendant under Ex.P8, as he had lost his right in the Execution Petition in Execution Petition No.170/1982. Admittedly, as of the date of execution of the registered sale deed by K.M.Lingappa in favour of the defendant, he was not having any right, title or interest over the suit schedule property, as the said property was already sold in the auction held on 23.07.1983 and the said sale deed was executed in favour of the defendant on 10.09.1986.

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The Hon'ble Supreme Court in the case of State of Punjab and another vs. Ferrous Alloy Forgings Private Limited and others, reported in 2024 SCC Online SC 3372 , by referring to its earlier judgment in the case of B.Arvind Kumar vs. Government of India , reported in (2007) 5 SCC 754, observed

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that when a property is sold by public auction in pursuance of an order of the Court and the bid is accepted and the sale is confirmed by the Court in favour of the purchaser, the sale becomes absolute and the title vests in the purchaser. A sale certificate

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is issued to the purchaser only when the sale becomes absolute. The sale certificate is merely the evidence of such title. It is well settled that when an auction-purchaser derives title on confirmation of a sale in his favour and such a sale certificate is issued evidencing such sale and title, no further deed of transfer from the Court is contemplated or required. Although in the said case, the sale certificate was registered, yet the Court proceeded to observe that a sale certificate issued by the Court or an officer authorised by the Court, does not require registration under clause (xii) of sub-section 2 of Section 17 of the Indian Registration Act, 1908 which specifically provides for a certificate of sale granted to any

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purchaser of any property sold by a public auction by a civil or a revenue officer, does not fall under the category of non-testamentary documents , which require registration under sub-sections (b) and (c) of Section 17(1) of the said Act.

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It is further observed that the position of law is thus settled that a sale certificate issued to the purchaser in pursuance of the confirmation of an auction sale is merely an evidence of such a title and does not require registration under Section 17(1) of the Registration Act. It is not the issuance of the sale certificate which transfers the title in favour of the auction purchaser. The title is transferred upon the successful completion of the sale and its confirmation by the competent authority after all the objections against the sale have been disposed of.

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Admittedly, in the instant case, the auction was held by the Court and Shridhara Kumar has purchased the

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said property in the auction. From the perusal of the order-sheet of the Execution Petition, it discloses that the sale was confirmed by the executing Court. Thus, the auction in favour of Shridhara Kumar amounts to transfer of title.

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In view of the proposition laid down by the Hon'ble Apex Court in the cases referred supra, K.M.Lingappa had no right to execute a registered sale deed in favour of the defendant. The defendant has not acquired any right, title or interest over the suit schedule property by virtue of Ex.P8.

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Both the Courts below have rightly considered the entire evidence on record and I do not find any error in the impugned judgments. The judgments and decrees passed by the Courts below are just and proper and do not call for any interference at the hands of this Court.

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