Hanumanthappa and Others vs Manik and Others

A.V. Chandrashekara, J—The present appeal filed under Section 100 of CPC, is directed against the divergent judgment passed by the learned Judge of First Appellate Court in R.A. No. 5/2000, which was pending on the file of the Court of Additional District and Sessions Judge at Bidar.

The appellants herein were the plaintiffs in O.S. No. 8/1994, before the Court of Civil Judge (Sn.Dn.) at Basavakalyan of Bidar district.

The plaintiffs had filed a suit requesting the Court to grant the following reliefs:

A. It be declared that the plaintiffs and defendant No. 1 are the joint owner and possessors of the suit lands Sy. No. 54/10 and 12 totally measuring 1 acre 18 guntas. R.A. of Rs. 0.56 ps. Situated in Neelkhantwadi taluk; Basavakalyan which is bounded as under:

East: Land of plaintiffs

West: Land of one Saibanna

North: Land of the plaintiff Manik''s share in other properties.

South: Land of plaintiff Ismail''s share in other properties.

B. The defendants No. 2 to 6 be restrained perpetually from interfering and obstructing in the join possession of the plaintiffs and defendant No. 1 over the suit lands.

C. The rectification of entries in the R.O.R. of the suit land Sy. No. 54/10 and 12 totally measuring 1 acre 18 guntas be made by inserting the names of plaintiffs and defendant No. 1 and the names of defendants No. 2 to 6 be deleted.

D. It be declared that the sale deeds bearing document No. 1313/93-94 dated 18.06.1993 in respect of the suit lands Sy. No. 54/12 measuring 0.24 guntas R.A. of P.S.0.56 situated in Neelkantwadi executed by defendants No. 2 to 6 in favour of defendant No. 1 null and void & not binding upon the plaintiffs and defendant No. 1.

E. The cost of the suit be awarded to the plaintiffs.

F. Any other reliefs for which the plaintiffs are entitled to be awarded.

The suit was contested by defendant Nos. 4 and 6 by filing the written statement. Defendant Nos. 2, 3 and 5 also have filed the written statement but they have supported the case of the plaintiffs.

The case of the plaintiffs is that the land measuring 1 acre 18 guntas in Sy. Nos. 54/10 and 54/12 of Neelkanthwadi village of Basavakalyan taluk originally belonged to two persons by name Siddappa and Ramanna. Defendant Nos. 4 to 6 were joint owners and possessors of the suit land. The father of defendant Nos. 2 and 3 namely Peerappa and defendant Nos. 4 to 6 were in need of money for their family and legal necessities and to clear the family debts, and they sold the suit lands in favour of the plaintiffs for Rs. 3,200/- and received the sale consideration amount and even delivered the actual possession of the suit land in favour of the plaintiffs by executing a registered sale dated 24.02.1975.

According to the plaintiffs the property in question was acquired from and out of the joint family funds of the family of the purchaser. It is the case of the plaintiffs that on the understanding of the members of the family of Peerappa, sale deed was executed in favour of Bhimanna and therefore it was a joint family property.

Such being the case, it is averred that there could not have been any sale deed in favour of first defendant on 18.06.1993 to an extent of 24 guntas of land in Sy. No. 54/12 of defendant Nos. 2 to 6 and therefore the plaintiffs had requested the Court to declare the said sale deed as null and void and to declare the plaintiffs and defendant No. 1 as the joint owners in possession entirety extent of land in Sy. No. 54/10 and 12 and to restrain defendant Nos. 2 to 6 from interfering with the peaceful possession and enjoyment of the same.

Defendant No. 1 had also filed a detailed written statement stating that the sale deed dated 24.02.1975 executed by Siddappa and three sons of Ramanna was only nominal sale deed and the consideration shown therein was a loan given by Bhimanna S/o Peerappa and that the sale deed bearing registration No. 2798/74-75 dated 24.02.1975 had never been acted upon. According to the first defendant, defendant Nos. 2 to 6 were in actual possession and enjoyment of the entirety extent of 1.18 acres of land as absolute owners and they were entitled to deal with the same in any manner. According to the first defendant, defendant Nos. 2 to 6 to executed a sale deed in his favour on 18.06.1993 for a consideration of Rs. 41,000/- to an extent of 24 guntas in Sy. No. 54/12 and that he has been in possession of the same. Thus he is said to be in lawful possession and enjoyment of the said property measuring 24 guntas.

It is also further averred by the first defendant that a suit had been filed in O.S. No. 65/1980 by Siddappa against plaintiff No. 2/Bhimanna and Shivaram before the Court of Munsiff Court at Basavakalyan for rectification of revenue records in respect of Sy. No. 1.18 acres of land in O.S. No. 54/10 and 12 and to enter their names as the sale deed dated 24.02.1975 had not been acted upon by the purchaser and that it was only nominal document. Both the defendants had filed written statement admitting the contents of the plaint and therefore the suit ended in a decree.

In this view of the matter the suit of the plaintiffs is stated to be not maintainable either in law or on facts. Defendant Nos. 4 to 6 had also filed written statement on the lines of one filed by defendant No. 1 on the basis of the above pleading following issues came to be framed.

(a) Whether plaintiffs prove that Siddappa and defendant Nos. 4 to 6 jointly sold Sy. No. 54/10 and 54/12 measuring 1 acre 18 guntas in favour of plaintiff No. 2?

(b) Whether plaintiffs further prove Sy. No. 54/10 and 12 purchased from joint family funds?

(c) Whether plaintiffs further prove that, 1 acre 18 guntas was kept joint in between plaintiff and 1st defendant after the partition of 1990?

(d) Whether plaintiffs further prove that sale deed executed by defendant Nos. 2 to 6 in favour of defendant No. 1 is null and void?

(e) Whether plaintiffs prove that 1 acre 18 guntas were sold by Siddappa and defendant Nos. 4 to 6 jointly sold for family necessity?

(f) Whether defendant Nos. 4 and 6 prove that sale of 1 acre 18 guntas is the money transaction and not a out-right sale?

(g) Whether defendant Nos. 4 to 6 prove that defendant Nos. 4 to 6 had a valid title in respect of Sy. No. 54/12 to the extent of 24 guntas. Therefore, the sale by them is valid one?

(h) What order or decree?

One Tukaram came to be examined as PW.1 and two witnesses came to be examined on his behalf and 6 exhibits have been got marked in all 4 witnesses have been examined on behalf of the defendants inclusive of Manik as DW.1, 4 exhibits have been got marked on behalf of the defendants inclusive of the copy of the decree filed in O.S. No. 65/80 plaint and written statement. The suit came to be decreed with compensatory cost of Rs. 2,000/- vide judgment dated 09.12.1999 as against which an appeal was filed before the Court of Senior Civil Judge at Bidar, under Section 96, CPC. The same had been withdrawn and transferred to the Court of Addl. District Judge at Bidar and numbered in R.A. No. 5/2000. But the said appeal has been allowed on 13.02.2002 and the suit has been dismissed in its entirety. It is this divergent judgment of the first appellate court which is called in question on the various grounds as sought in the appeal memo and the suit itself was not at all maintainable in law.

Learned counsel for the appellant has vehemently argued that First Appellate Court could not have set aside a well considered judgment of the trial Court when clear admission has been elicited from the mouth of DW.1 relating to the fact that Siddappa was already dead by the time O.S. No. 65/1980 was filed and that the suit filed in O.S. No. 65/1980 was not for declaration of title, but for rectification of the revenue entries and therefore the very suit itself was not maintainable. It is further argued that only Siddappa had filed the said suit and other sellers viz., the sons of Ramanna had not filed the suit and therefore the said judgment and decree does not have any legs to stand. It is further argued that even without there being any reply or rejoinder to the averment found in the written statement filed by the first defendant, the plaintiffs were entitled to show to the Court that the said decree drawn in O.S. No. 65/1980 was in fact a nullity and non-nest.

Per contra the learned counsel for the first defendant has vehemently argued that the plaintiffs did not file any rejoinder or reply as against the judicial proceedings of O.S. No. 65/1980 and this fact has been taken into consideration by the First Appellate Court. It is further argued that DW.2 Shanmukappa was the advocate who appeared for defendants in O.S. No. 65/1980 and his evidence has been properly considered by the First Appellate Court. It is further argued that second plaintiff Bhimanna the purchaser of land of 1.18 acres on 24.02.1970 was not at all examined in O.S. No. 8/1994 and therefore non examination of a material witness would enable the Court to draw an adverse inference under Section 114(g) of Evidence Act and that this aspect has been considered by the First Appellate Court.

It is further argued by the learned counsel for the first defendant that the trial Court could not have compared the LTM of purchaser Bhimanna found on Ex.P6 with his LTM found in the written statement filed in O.S. No. 65/1980 and this has been done without the report of any expert. Further the learned counsel for the first defendant has relied upon a decision of the Hon''ble Apex Court reported in Smt. Gangabai Gilda Vs. Smt. Chhabubai Gandhi, AIR 1982 SC 20 : (1981) 3 SCALE 1753 : (1982) 1 SCC 4 : (1982) 1 SCR 1176 : (1982) 14 UJ 1 to contend that oral evidence can be led to show that a document executed was not intended to be operative and a different transaction was intended and that there is no inhibition to that effect under Section 92 of the Evidence Act. Further, reliance is placed upon yet another decision reported in Bondar Singh and Others Vs. Nihal Singh and Others, AIR 2003 SC 1905 : (2003) 2 CTC 635 : (2003) 2 SCALE 589 : (2003) 4 SCC 161 : (2003) 2 SCR 564 : (2003) AIRSCW 1383 : (2003) 2 Supreme 512 to contend that in the absence of a specific plea, any amount of evidence adduced cannot be looked into and party cannot be allowed to build up a case without any definite pleading. It is further argued that the First Appellate Court, being the final Court on facts, has properly reassessed the entire evidence in right perspective and has allowed the appeal in its entirety and dismissed the suit. Hence, he requested the Court to dismiss the present appeal.

Following are the substantial questions of law framed by this Court while admitting the appeal on 27.06.2002.

(i) Whether the Court below could have reversed the judgment and decree passed by the Trial Court and dismissed the suit filed by the appellants in its entirety?

(ii) Whether the Court below could have held that the registered sale deed dated 24.02.1975 was only a security in view of Ex.D2 oral evidence given in a suit where the plaintiff was deed?

(iii) Whether the oral evidence could be admissible to hold that the registered sale deed is not binding on the parties and it amounts to only a security?

All the substantial questions of law framed on 27.6.2002 are inter-related and hence they are taken up together for common discussion.

Ex.P6 is an original sale deed dated 24.2.1975 registered as document No. 2798/1974-75. Ex.P4(A) is the translated English copy of Ex.P6. The fact that the land in Survey No. 54/10 and 54/12 measures 1.18 acres in total is not in dispute. The land in question belonged to one Siddappa, s/o Ramanna and his brother, Ramanna. As on 24.2.1975, Siddappa''s brother Ramanna was not alive and had left behind 3 sons namely, Appanna, Mallappa and Maruthi. Siddappa, s/o Ramanna and his three nephews jointly sold 1.18 acres of land in Survey Nos. 54/10 and 54/12 in favour of Bhimanna, son of Peerappa for Rs. 3,200/- which fact is not seriously disputed. Ex.P4(A) further discloses that not only title was conveyed under Ex.P6, but also possession was handed over to the purchasers, namely Bhimanna, s/o Peerappa.

Ex.P4(A) further discloses about possession being delivered and a specific covenant being found therein and the same is as follows:

''Prior to execution of this absolute sale deed, the vendors have received the entire consideration amount from the purchaser. So there is no necessity of passing a separate receipt. Also the vendors have delivered actual and physical possession of the said land to the purchaser.''

On the basis of the said registered sale deed, the name of Bhimanna, s/o Peerappa came to be entered as Khatedar in column Nos. 9 and 10 of the revenue records. This fact is also not seriously disputed.

On a plain reading of Ex.P6 which is equivalent to Ex.P4(A), it is evident that it is a registered sale deed executed in accordance with the provisions of the Registration Act. Out of the four vendors, only Siddappa, s/o Ramanna (1st vendor) chose to file a suit in O.S.65/80 before the then Munsiff Court at Basavakalyan against the purchaser, Bhimanna s/o Peerappa and Shivaram, s/o of Bhandappa seeking a declaration that he is entitled to get his name entered in the ROR pertaining to Survey No. 54/10 and 54/12 measuring 1.18 acres of Neelakantwadi village by deleting the name of the defendants. Heavy reliance is placed upon the certified copy of the plaint in O.S.65/80 which is marked as Ex.D3 and the certified copy of the written statement filed by Bhimanna and Shivaram, defendants in the said suit and also certified coy of the decree drawn in the suit.

Copies of the RTC in respect of Survey No. 54/10 and 54/12 have been marked as Exs.P1 and P2 respectively. The name of Siddappa, s/o Ramanna is been found as Khatedar/Pattedar and his name came to be bracketed and the name of Thippanna came to be entered vide M.R. No. 41/31.10.1991. His name is found in column No. 12(2) for the year 1992-93. This is one year prior to the filing of O.S.8/94. If really the name of Siddappa and his nephews continued in the revenue records as Khatedar and the land was in their possession, there was no necessity for Siddappa to have filed the suit in O.S.65/80 requesting the court to declare that he is entitled to get his name entered in the ROR by deleting the name of the purchaser. This would amply demonstrate that the name of Bhimanna, s/o Peerappa had already been entered as Khatedar on the basis of Ex.P6 which is equivalent to Ex.P4(A), registered sale deed.

The first appellate court has placed heavy reliance upon Exs.D2 to D4, certified copies of the decree, plaint and written statement in O.S.65/80. The certified copy of the judgment in O.S.65/80 which is the basis for the decree is not forthcoming. But the copy of the decree states that the suit came to be decreed without contest as defendants therein had filed written statement accepting the plaint averments.

The defendants have chosen to examine Sanmukappa, s/o Niranjappa, an advocate practising in Basavalkalyan to impress upon the fact that he had filed written statement on behalf of the defendants in O.S.65/80 before the Court of Munsiff at Basavakalyan and that he had been instructed by Bhimanna and Shivaram and had verified the contents of the written statement. Therefore the learned judge of the first appellate court has come to the conclusion that there is nothing on record to disbelieve the certified coy of the written statement filed in O.S.65/80 and therefore this has to be acted upon. He has further deposed that one person Gampu Rao was also present and in his presence, the defendants put their LTM. The learned judge of the trial court has compared the LTMs of Bhimanna found in Ex.D4 written statement and on Ex.P6 obtained by him from Siddappa and 3 others on 24.2.1975.

What is argued before this court by the learned counsel for the respondent is that the trial court has committed a serious error in comparing the disputed LTMs with the admitted LTMs and this is incorrect. It is argued that though the court is an expert of experts, it could not have ventured to compare the LTMs without there being a report from a handwriting expert. There is a lot of force in this submission. Though the court is an expert of experts, it should not take upon itself the risk of comparing the disputed handwriting or admitted handwriting or LTM unless a report is obtained from the expert since such an exercise is scientific examination. This law has been laid down in the case of The State (Delhi Administration) Vs. Pali Ram, AIR 1979 SC 14 : (1979) CriLJ 17 : (1979) 2 SCC 158 : (1979) SCC(Cri) 389 : (1979) 1 SCR 931 . Since the two LTMs are identical, an expert would be in a better position to compare the same with the disputed LTM and it would help the court in arriving at a proper conclusion.

The learned judge of the appellate court has not made a deep analysis of Exs.D2 to D4. He has also not discussed as to whether O.S.65/80 is maintainable. The civil court cannot declare the revenue entries either as correct or incorrect. It is within the domain of the revenue authorities. The proper course should have been to seek a declaration that the vendors had not transferred any title under Ex.P6 on 24.2.1975 and it was only nominal and sham document and that the amount received as consideration was only a loan amount and not consideration in effect. Without seeking a comprehensive relief, the defendants cannot lay any claim.

What is argued before this court by the learned counsel for the respondent is that there is no legal inhibition under Section 92 of the Evidence Act to show that a registered document was not intended to be operative and that the same is admittedly different. A decision reported in Smt. Gangabai Gilda Vs. Smt. Chhabubai Gandhi, AIR 1982 SC 20 : (1981) 3 SCALE 1753 : (1982) 1 SCC 4 : (1982) 1 SCR 1176 : (1982) 14 UJ 1 has been relied upon and the necessary discussion is extracted below:

''The bar imposed by sub-section (1) of Section 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. IN that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The sub-section is not attracted when the case of a party is that the transaction recorded ion the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties.''

It is true that a party can lead evidence though not to contradict the terms found in a written document, but to demonstrate that the intention of executing the document was otherwise than the one mentioned in the deed.

Further reliance has been placed on the decision of the Hon''ble apex court in the case of Bondar Singh and Others Vs. Nihal Singh and Others, AIR 2003 SC 1905 : (2003) 2 CTC 635 : (2003) 2 SCALE 589 : (2003) 4 SCC 161 : (2003) 2 SCR 564 : (2003) AIRSCW 1383 : (2003) 2 Supreme 512 to contend that the plaintiffs in O.S.8/94 did not file any rejoinder or reply in regard to the specific plea taken by the 1st defendant about the judgment and decree in O.S.65/80 on the basis of the plaint and written statement filed by the parties therein. The decision in the case of BONDOR SINGH is relied upon to contend that him the absence of a specific plea, any amount of evidence led will be of no use and a party cannot be allowed to build up a new case. It is further argued that having not filed any reply or rejoinder against the main stand taken up by the 1st defendant in his written statement, the plaintiffs cannot contradict the same or lead evidence to contradict the contents of those judicial proceedings.

This court is unable to accept the said plea for the simple reason that the burden is on the defendants to prove that the judgment and decree in O.S.65/80 is a valid decree to be taken note of by the court. As already discussed, the relief so sought for in O.S.65/80 was virtually outside the scope of the civil court. No relief of declaration of title had been sought. Apart from this, the other vendors had not joined Siddappa in filing the suit. Defendants 2, 3 and 5 have chosen to file written statement admitting the contents of the plaint. The sons of Siddappa have supported the case of the present plaintiffs and in this view of the matter, the decree obtained in O.S.65/80 will have absolutely no legal effect on the case of the plaintiffs.

Apart from this, DW1-Manik, s/o Peerappa has feigned ignorance about the suit being filed in O.S.65/80 in the name of Siddappa and has feigned ignorance as to whether O.S.65/80 was true or false. He has feigned ignorance about the contents of Exs.D2 to D4 and has deposed that in 1980 the suit could not have been filed by Siddappa as he was dead.

It is argued by the learned counsel for the contesting respondent that the entire admission will have to be read as a whole and one stray sentence referred to in page 30 of the trial court''s judgment cannot be drawn out of context and blown out of proportion. This court is unable to accept the said contention. The entire admission will have to be read as a whole. The answers given in the earlier two sentences have to be construed in the light of other sentences referred to in page 30 of the judgment of the trial court. The said admission will have to be viewed in the light of the sons of Siddappa supporting the plaintiffs case. In the present case, as already discussed, Siddappa could not have filed the suit in his individual capacity seeking a declaration to the effect that his name has to be entered as Khatedar in respect of the two lands in question, without his nephews joining him. It is not as though this admission is inconsequential in nature.

The first appellate court being the final court of facts, should have re-assessed the entire evidence in right perspective keeping in mind the fact that sons of Siddappa themselves have supported the case of the plaintiffs and that the sons of Ramanna had not joined Siddappa in filing the suit in O.S.65/80. The decisions relied on by the learned counsel for the respondent are clearly distinguishable vis-a-vis the facts of the present case. Neither the 1st defendant nor the sons of Ramanna have been able to substantiate that the vendors continued to be in possession of the land and their names continued in column Nos. 9 and 10 as well as 12(2). If really the vendors were found to be in possession of the property, they would have paid land revenue continuously.

Even otherwise, the learned judge, while allowing the appeal, has failed to take into consideration that the appeal could have been, at best, decreed to the extent of land purchased by the 1st defendant. Instead of that, the entire appeal has been allowed. Viewed from any angle, the judgment of the trial court could not have been upturned by the first appellate court.

Though the defendants were entitled to lead evidence to demonstrate the intention contrary to the covenants of Ex.P6 dated 24.2.1975, they have not been able to do so. Heavy burden lies on the person who wants a registered document of sale to be treated as only a document of security. No such acceptable evidence is placed on record to rebut the statutory presumption available in regard to the contents of a registered sale deed. Even otherwise, the revenue proceedings were initiated by the plaintiffs in 1993 and the Assistant Commissioner chose to dispose of the appeal in the light of pendency of the suit for declaration of title. In this view of the matter, the first appellate court is not justified in allowing the appeal holding that the sale deed dated 24.2.1975 was only a security and not binding on them. Thus all the substantial questions of law are answered in the negative. Accordingly the appeal will have to be allowed.

In the result, the following order is passed:

ORDER

The appeal is allowed in its entirety. The judgment of the first appellate court ion R.A.5/00 which was pending on the file of the Additional District Judge, Bidar, is set aside. The judgment of the trial court in O.S.8/94 on the file of Civil Judge (Senior Divn.), Basavakalyan, is restored and the suit is decreed as prayed for.

Parties to bear their own costs.