Nasrulla Vs Babu

THIS RSA IS FILED UNDER SEC.100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 06.12.2021 PASSED IN RA.NO.31/2019 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, SHIVAMOGGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 12.02.2019 PASSED IN OS.NO.789/2013 ON THE FILE OF THE III ADDITIONAL CIVIL JUDGE AND JMFC, SHIVAMOGGA.

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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 PRADEEP SINGH YERUR

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NC: 2026:KHC:19706 RSA No. 922 of 2022

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ORAL JUDGMENT

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Heard learned counsel for the appellants.

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This appeal is filed by the plaintiffs challenging the judgment and decree dated 06.12.2021 in R.A.No.31/2019 passed by the first Additional Senior Civil Judge and C.J.M., Shivamogga, confirming the judgment and decree of the trial Court dated 12.02.2019 in OS.No.789/2013 by the III Additional Civil Judge and JMFC, Shivamogga, whereby the suit of the plaintiffs came to be dismissed.

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The parties to the proceedings shall be referred to as plaintiffs and defendants for the sake of brevity.

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The brief facts of the case are as follows:

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It is the case of the plaintiffs that their father late.

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Akbar Sab was the original owner of the suit schedule property, and he acquired the suit schedule property by

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NC: 2026:KHC:19706 RSA No. 922 of 2022

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way of a registered partition deed between himself and his brother Mohammed Sab. In the said partition, site bearing No.311 measuring 15 X 60 feet had fallen to the share of Mohammed Sab, i.e., the father of the defendants and Akbar Sab. This being the state of affairs, the said Mohammed Sab, taking undue advantage of the permissive possession of the suit schedule property, managed to obtain some signatures on the stamp papers and converted the same to a relinquishment deed. The relinquishment deed is a result of fraud and misrepresentation. There was no consideration paid in the relinquishment deed. It is also stated that the father of the plaintiffs, namely Akbar Sab, died on 09.04.2005. His brother, Mohammed Sab, also died, leaving behind the legal heirs, i.e., defendants.

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It is stated that the defendants now are in possession of the suit schedule property. The plaintiffs demanded possession of the suit schedule property from the defendants, who went on dodging and did not hand

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over the possession. Therefore, left with no alternative, the plaintiffs who are the children of Akbar Sab filed suit against Mohammed Sab and his children. The suit came to be filed seeking the relief of cancellation of the relinquishment deed dated 18.08.1995 and to declare the relinquishment deed to be null and void and for the delivery of the possession.

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Upon summons being served to the defendants, the defendants appeared and filed a statement taking a plea that the suit is barred by law of limitation as the registered relinquishment deed is dated 21.11.1995 and Akbar Sab died on 09.04.2005. It was also pleaded that Akbar Sab did not challenge the relinquishment deed during his lifetime. The khata of the property has been transferred into the name of Mohammed Sab and Akbar Sab had given up his rights in respect of the suit schedule property in favour of his brother Mohammed Sab during his lifetime. It was also pleaded by the defendants that after receiving the consideration amount, Akbar Sab

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executed the relinquishment deed, having knowledge of the same. The defendants denied any misrepresentation or fraud having been committed. It is also stated that plaintiffs with an intention to extract money from the defendants have filed the false suit.

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On the basis of the pleadings, the trial Court

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framed the following issues for consideration.

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1. Whether the plaintiffs prove that father of defendant by name Mohammed Sab had got executed the relinquishment deed dated: 18.08.1995 by playing fraud and misrepresentation on their father by name Akbar Sab in respect of the suit schedule premises?

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2. Whether the plaintiffs further prove that, the defendants are in permissive possession of the suit schedule property under them?

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3. Whether the plaintiffs are entitled for the relief's prayed for?

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4. Whether the suit of the plaintiff is barred by limitation?

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5. What order or decree?

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In order to establish the case and prove the

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issues, the plaintiff No.1 examined himself as PW1 and another witness as PW2 and got marked the documents as Ex.P1 and Ex.P2 whereas the defendant No.2 examined himself as DW1 got marked 26 documents as Ex.D1 to Ex.D26.

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Based on the materials placed on record, both oral and documentary, and on the basis of the submissions of learned counsel for both parties, the trial Court did not find favour in the case made out by the plaintiffs and dismissed the suit of the plaintiffs. The trial Court has taken into consideration Ex.P2 - partition deed, Ex.P1 - the relinquishment deed and also dealt with the order sheet in OS.No.233/1997 filed by the father of the plaintiffs, namely Akbar Sab, who had filed the suit for permanent injunction against his brother Mohammed Sab which came to be abated vide order dated 11.07.2003, in view of the death of the father of the plaintiffs. Considering all these aspects, the trial Court came to a conclusion that the

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plaintiffs did not made out a valid case for cancellation and declaration of the relinquishment deed to be null and void and, accordingly, dismissed the suit.

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Aggrieved by the judgment and decree, plaintiffs preferred an appeal before the 1st Additional Senior Civil Judge and CJM., Shivamogga, in RA.No.31/2019. In the first appeal proceedings, the summons was served to the respondents who appeared before the Court. During the pendency of the suit itself, defendant No. 1, i.e., Mohammed Sab, passed away, and his legal representatives were brought on record.

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Upon reconsideration and re-analysing the entire materials once again, the appellate Court had a relook of the matter and formulated the following points for consideration.

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1. Whether the appellants have made out ground to allow the applications filed U/o XLI Rule 27 R/W 151 of CPC and permit them to adduced additional evidence?

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2. Whether the trial court has erred in holding that the plaintiffs have failed to prove that Late. Mohammed Sab played fraud and misrepresentation in getting execution of Relinquishment Deed dated 18.08.1995?

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3. Whether the impugned judgment and decree so passed by the trial court requires interference by this Court?

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4. What order?

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The first appellate Court, on re-looking at the matter once again, the whole gamut of materials placed before the trial Court and the arguments advanced by the learned counsel for the appellants/plaintiffs including the application filed under Order 41 Rule 27 read with Section 151 of CPC, reconsidered the matter; however, did not find favour with the appellants/plaintiffs, dismissed the appeal, and confirmed the judgment and decree rendered by the trial Court.

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It is the vehement contention of the learned

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counsel for the appellants/plaintiffs that the trial Court as well as the first appellate Court has misconstrued the

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materials placed on record, both oral and documentary, and has not considered the factual aspect as well as the legal aspect with regard to the validity of the relinquishment deed and the signatures so portrayed in the relinquishment deed of fraud and misrepresentation committed by the father of the defendant, i.e., Mohammed Sab, who is none other than the brother of Akbar Sab. Therefore, the entire oral and documentary evidence has been totally ignored and erroneously considered, which is contrary to the materials placed on record.

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It is also contended by learned counsel for the appellants/plaintiffs that the first appellate Court has misconstrued provisions of Section 31 of the Specific Relief Act for cancellation of the relinquishment deed obtained by the father of the defendant by playing fraud. It is also contended that the father of the defendants Sri.Mohammed Sab had created and concocted the relinquishment deed by playing fraud by obtaining the signature of the father of the plaintiff, which has not been

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considered, and the same ought to have been declared as

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null and void. It is also contended by learned counsel for the appellants/plaintiffs that the relinquishment deed so relied by the defendants ought to have been proved by the defendants; they have not examined any witnesses in regard to the relinquishment deed, nor have they summoned the sub registrar for the production of the original relinquishment deed. Therefore, the defendants have not proved and established the relinquishment deed be valid in the eyes of law.

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It is also the vehement contention of learned

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counsel for the appellants/plaintiffs that the first appellate Court and the trial Court have totally ignored the institution of the suit by Akbar Sab in O.S.No.233/1997 against the brother Mohammed Sab, whereby he had sought for a permanent injunction restraining Mohammed Sab from alienating the suit schedule property. It is also contended by learned counsel for the appellants/plaintiffs in the course of arguments that in the original suit

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proceedings in OS No.233/1997, Akbar Sab himself had filed an application seeking amendment of the pleadings to convert the same by incorporating and including a prayer to declare the relinquishment deed to be null and void and not binding on the plaintiffs therein. However, he admits that the said application was not decided on merits nor was it allowed, and during the pendency of the suit and before the application was considered, Akbar Sab died, and the suit came to be abated.

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It is also the vehement contention of the learned counsel for the appellants/plaintiffs that various admissions have been given by the defendants in the evidence, which has not been taken into consideration by the trial Court as well as the first appellate Court. The same needs to be re-look by this Court. Therefore, he contends that the conclusion and finding arrived at by the trial Court and the first appellate Court are opposed to the law, the materials placed on record, contrary to the evidence. Hence, he seeks framing of substantial

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questions of law as urged in the appeal memo, which more specifically deals with the trial Court and the first appellate Court not appreciating the pleadings and the evidence on record and for non-consideration of Order 41 Rule 27 of CPC for production of additional documents and misinterpreting and misconstruing the evidence and the pleadings on record.

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At this stage, this Court is not inclined to issue notice to the respondents, as this Court is of the opinion that the appellant has not made out any good ground or cogent reason to frame substantial questions of law. At the stage of admission itself, this Court is inclined to dismiss the appeal for the following reasons.

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Apparently, there is no dispute with regard to the relationship between two parties, namely Akbar Sab and Mohammed Sab, who are brothers. It is also not in dispute that the property was partitioned between the two brothers, and one portion of it went to the share of Akbar

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Sab and another portion of it went to the other brother, Mohammed Sab. However, what is disputed is the relinquishment deed said to be registered on 21.11.1995. Apparently, the suit in question has been filed by the legal representatives of Akbar Sab against Mohammed Sab and his children. It is also seen that Akbar Sab, during his lifetime, had filed the original suit in O.S.No.233/1997 for the relief of permanent injunction. During the lifetime of Mohammed Sab and during the pendency of the suit, Akbar Sab died, and the suit got abated.

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Though it is stated that in the suit filed for a permanent injunction by Akbar Sab, an application was made seeking to declare the relinquishment deed as null and void and not binding on the plaintiffs. The same was not allowed, nor was it considered. As the suit got abated and it did not survive for consideration, neither the appellants/plaintiffs made an application to implead themselves.

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It is contended by learned counsel for the

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appellant/plaintiff that during the pendency of the original suit and after the written statement was filed, it was only then the plaintiffs came to know about the relinquishment deed. However, the application for amendment even in the earlier suit for permanent injunction filed by Akbar Sab came to be filed somewhere in the year 2003, and after filing of the said application, it was not taken forward as the suit abated. Pursuant to which the present suit came to be filed by the legal representatives of Akbar Sab against the legal representatives of Mohammed Sab in the year 2013. All these aspects are not in dispute.

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The trial Court and the first appellate Court have considered the materials placed on record. It was for the plaintiffs to prove and establish whether the relinquishment deed was valid in law by placing the materials, both oral and documentary, before the trial Court or before the first appellate Court, the same having not been placed, the trial Court has dismissed the suit, so

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also the first appellate Court upon re-appreciation, reanalysing the entire material once again, did not find favour with the appellant and has dismissed the appeal and confirmed the judgment and decree of the trial Court.

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Therefore, it is seen that two Courts have concurrently held on facts based on pleadings and evidence, but the plaintiff was unable to prove his case and the materials available before both the Courts. It is not open for this Court to have a re-look at the evidence once again to re-appreciate the evidence as this Court is not sitting in the appellate jurisdiction.

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Section 100 of CPC deals with the scope and powers of the Appellate Court. It is a no more res integra to state that the powers as contemplated under Section 100 CPC are very narrow and limited. This Court, in several catena of judgments, has held that the Appellate Court sitting in the second appeal is not required to appreciate the evidence on record unless there is

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perversity shown in the judgments rendered by the trial Court as well as the first Appellate Court. When two Courts have already considered the question of fact and the question of law to a large extent in detail, even if this Court finds third opinion on the opinions already expressed concurrently by both Courts, it is a general Rule that this Court should refrain from imposing its third opinion merely for the sake of interference when there is no cogent material placed on record.

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In view of the discussions made herein above, I do not find any good ground or cogent reason to accept the contention of the appellants/plaintiffs as he has not moved his little finger even after coming to know of the defence taken by the defendants in the earlier suit O.S.No.233/1997 with regard to the relinquishment deed as even the application that is filed is to be accepted for cancellation of the relinquishment deed to be null and void. It is filed in the year 2003. Thereafter, the suit got abated. The present suit was filed in 2013. Therefore all

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these aspects have been elaborately dealt with by the trial

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Court as well as the first appellate Court and have come to a rightful conclusion on the plaintiffs having not succeeded before both the Courts. In view of the findings and the discussions made herein above, I do not find any good ground or cogent reason to frame substantial questions of law as urged by the appellants in the appeal memo. Accordingly, I pass the following order:

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ORDER

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The appeal is dismissed at the initial stage of

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admission itself as there are no substantial questions of law required to be framed.

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Sd/(PRADEEP SINGH YERUR) JUDGE

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RCK List No.: 1 Sl No.: 33

Nasrulla v. Babu

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Nasrulla v. Babu

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