Nanarao and Others vs Anneppa

K.N. Phaneendra, J.—The appellants are the aggrieved plaintiffs in O.S. No. 69/1985 on the file of Munsiff & J.M.F.C. Basavakalyan, which was dismissed on 30-6-1995 and affirmed by the first appellate Court in R.A. No. 25/1995.

For the purpose of convenience, I would like to refer the parties as per their ranks before the trial Court.

There are three plaintiffs, who filed the suit against the defendant stating that land bearing sy. No. 155/3 measuring 5-acres 39-guntas and Hissa No. 6 measuring 1-acre, situated at Hanmanthvadi, Morkhandi village of Basavakalyan Taluk, originally belonged to the plaintiffs.

It is further case of the plaintiffs that in the year 1972 they had obtained loan of Rs. 4,000/- from the defendant. As a security for the repayment of the said loan, the plaintiffs have executed a document, which is styled as sale deed vide document dated: 3-11-1972. It is further stated by the plaintiffs that though the said document was executed in favour of the defendant, still they continued in possession of the said land and they have been cultivating the said land even as on the date of the suit. As the defendant unnecessarily interfered with the possession and enjoyment of the property by the plaintiffs, they filed the suit for various reliefs i.e. for the purpose of declaring that the said document executed by them is not a out and out sale deed but it is a mortgage with a re-conveyance condition. Further it is urged before the Court to cancel the said document executed in favour of the defendant and to grant an order of injunction restraining the defendant from interfering with plaintiffs possession and enjoyment of the suit schedule properties.

The exposition of the facts as culled out in the written statement are that the defendant has taken up the contention that the allegations made in the plaint are all false. However, he admitted that the plaintiffs are the owners of the said land and in fact they have executed a sale deed on 3-11-1972 and it is an out and out sale and by virtue of the said sale deed, the defendant had been put in possession and enjoyment of the property and accordingly the defendant has been in possession and enjoyment of the property and the said sale deed was for consideration and possession has been with the defendant. Though some other defenses have been taken with regard to the Court fee and other things, but they are not relevant for the purpose of disposing off this appeal.

On the above said rival pleadings of the parties, the trial Court has framed as many as 12-issues, which are as follows:-

1) Whether the plaintiff proves that they are the owners and possessors of suit land?

2) Whether the plaintiff further proves that the sale deed dated: 3.11.1972 is sham and bogus and nominal one as contended in the plaint?

3) Whether plaintiff further proves that during the year 1972 they have mortgaged the suit land for consideration of Rs. 4,000/- and due to prohibition of mortgages they have executed nominal sale deed in favour of defendant?

4) Whether plaintiffs further prove that the sale transaction is a mortgage transaction and they have repaid the entire amount of Rs. 4,000/- to the defendant?

5) Whether the plaintiffs prove the illegal interference and obstruction by the defendant over the suit lands?

6) Whether the suit of plaintiff is hit by the principles of estoppel?

7) Whether the present suit is not maintainable in the present form?

8) Whether the market value of suit property is more than Rs. 25,000/- and this Court is pecuniary jurisdiction to try the suit?

9) Whether the suit of plaintiff is not properly valued and Court fee paid is not sufficient?

10) Whether defendants are entitle for compensatory cost of Rs. 500/-?

11) Whether the plaintiffs are entitle for a relief sought?

12) What order or decree?

The plaintiffs in order to prove their case, plaintiff No. 3 was examined as P.W. 1 and two more witnesses as P.W. 2 and P.W. 3 and Ex. P-1 to Ex. P-10 documents were marked. On the side of the defendant, the defendant through his power of attorney holder by name Iranna examined as D.W. 1 and two more witnesses examined as D.W. 2 and D.W. 3. The defendants have also produced the documents at Ex. D-1 to Ex. D-7.

The trial Court after going through the oral and documentary evidence produced before the Court, by answering the Issue Nos. 1 to 8 in the Negative, Issue No. 9 in the Affirmative and Issue Nos. 10 and 11 in the Negative and ultimately dismissed the suit of the plaintiffs.

On careful perusal of the oral and documentary evidence placed before the Court, it is evident that Plaintiff Nos. 2 and 3 have relied upon the documents at Ex. P-1 to Ex. P-4, which are the RTC extracts, pertaining to the disputed lands and Ex. P-5 to Ex. P-8 are the revenue receipts for the year 1983 to 1987 and Ex. P-9 is the order of the Asst. Commissioner and Ex. P-10 is the affidavit filed by one Srimanth. Of course, the trial Court has made an observation that though in the year 1974 the sale deed was executed, the RTC extracts are in the name of the plaintiffs, but the Court has come to the conclusion that merely because RTC extracts are in the name of the plaintiffs, it does not give a picture that they continue to be the owner of the properties. The trial Court has relied upon ruling reported in 1977 (2) KLJ PAGE-123, wherein this Court has held that

"merely because the mutation has not been changed over to the owner of the land, who acquired the property by virtue of sale deed, it does not mean to say the sale deed is invalidated".

Further added to that, the trial Court has relied upon the evidence of the attesting witnesses DW-2, who has categorically stated in his evidence that the plaintiffs have executed the said document and it is out and out sale transaction. In this context, it is also worth to note here that, though this man was subjected to severe cross examination as far as execution of this document but not properly dis-proved by the plaintiffs. It is worth to note here the pleadings of the plaintiffs. It is categorically stated at paragraph-2 of the plaint that the plaintiffs were in need of money for payment of family and religious debts and for legal necessities have mortgaged the suit lands for mortgage amount of Rs. 4,000/- in the year 1972. But, in the year 1972, the mortgages were prohibited, so as to evade law prevailing at that time, the defendant asked the plaintiff to execute absolute sale deed for Rs. 4,000/- and on re-payment of mortgage amount of Rs. 4,000/-, the defendant will get cancel the sale deed. It is further specifically stated that the said transaction is mortgage transaction and not out and out sale. So looking to the above said pleadings, it is clear that the document executed on 3-11-1972 is not in dispute and it is also specifically stated that it was executed for discharge of religious debts and for discharge of legal necessities. Very conveniently, plaintiff Nos. 1 and 2 have not examined themselves before the Court, because the plaintiff No. 3 has taken up contention that he has not signed the document, therefore, the said document Ex. D-1 is invalidated as such he was projected before the court. But, when the plaintiffs have admitted that the said document was executed on taking amount of Rs. 4,000/- is for legal necessity and for discharge of family debts, it goes without say that the Karta of the family i.e. father of the plaintiff Nos. 2 and 3 once he executed such document, it will not only bind himself but also binds other members of the family. If once the trial Court has disbelieved that it is not a mortgage deed and it is out and out sale deed, which has been proved before the trial Court by proving Ex. D-1, in my opinion, that will also bind plaintiff No. 3, though he takes up the contention that he has not signed the said document. Even assuming for a moment that the plaintiff No. 3 has not executed that document, his remedy lies elsewhere not in a suit of declaration for cancellation of the document, he would have only urged that the said document was only executed by plaintiff Nos. 2 and 3 and it does not bind the share of plaintiff No. 3 and in that context he would have claimed for declaration of his share in the suit schedule property by claiming that the said document not binding upon his share. But, he did not venture upon to do so. On the other hand, the suit was filed jointly by plaintiff Nos. 1 to 3. There cannot be any destructive pleadings amongst the plaintiffs themselves. If at all the plaintiff No. 3 wanted to take a destructive pleading from that of plaintiff Nos. 2 and 3, he would have transposed himself as one of the defendants or he would have filed independent separate suit if there is any destructive stand between himself and plaintiff Nos. 1 and 2 but he has not done so. Therefore, as rightly held by the trial Court, it is a collusive suit between plaintiff Nos. 1 to 3 as plaintiff Nos. 1 and 2 have not denied execution of the document, they did not step into the witness box to support the case of the plaintiff No. 3, I do not find any strong reasons to differ from the observation of trial Court and first appellate Court that the plaintiffs have colluded in order to defeat the rights of the defendant.

Of course the documents produced before the Court to some extent show the possession of the said property in the name of the plaintiffs pertaining to the year 1983 to 1987 but the trial Court observed that the property was sold in the year 1972 and the suit was filed in the year 1985. Previous RTC extracts prior to 1983 have not been produced before the Court. It is a legal requirement that once the document is executed, by way of a registered document, it is incumbent upon the registering authority U/Sec. 129 of Karnataka Land Revenue Act to intimate the concerned revenue prescribed officer to make an entry in the register of mutations in accordance with the registered document and U/Sec. 128 of Land Revenue Act, the persons who acquire the right by virtue of registered document is exempted from the obligation to report to the prescribed officer. On combined reading of Sec. 128 and Sec. 129 of Land Revenue Act, it discloses that, even RTC extracts mutation is not accepted in favour of the purchaser, it cannot be said that no title has been convened in favour of the purchaser. It is the duty of the registering authority to intimate the revenue authorities to make such entries. Merely because the RTC extracts and the revenue records to some extent standing in the name of the plaintiffs, it does not mean to say that the title has not been conveyed in favour of the plaintiffs and possession has not been delivered. Once the registered document is executed, it has got presumptive value unless presumption by the other side is controverted, the contents of the documents cannot be distracted. Further added to that, the Evidence Act excludes the oral evidence as against the contents of the documentary evidence when document is admitted, if it is a registered document and it is proved in accordance with law. As I have already narrated, Ex. D-1 document claimed to be mortgage deed has been proved as it is a sale deed by examining one of the attest or to the document. Therefore, the contents of the document has got presumptive value, which clearly disclose that the said transaction was out and out sale and the said lands were sold for consideration of Rs. 4,000/- and possession of the said land has been delivered by virtue of the said document. So in order to disturb the contents of that particular document, there should be some contemporary document executed by defendant in favour of the plaintiffs, if at all the said sale deed was in the nature of mortgage deed, subject to condition of re-conveyance. The re-conveyance of the property should be elucidated in the document itself or it should be by way of contemporary document to the effect that the defendant shall execute the deed in favour of the plaintiffs that he would re-convey the property as and when the amount of loan is reimbursed to him. In the absence of such elucidation of the transaction between the parties either in the document Ex. D-1 itself or by any means of contemporary document, any much of oral evidence cannot substitute such transaction between the parties. Therefore, the trial Court on analysis of the oral and documentary evidence has rightly came to the conclusion that it is out and out sale document and not a mortgage deed. Therefore, it has rightly dismissed the suit.

The First Appellate Court has also re-appreciated the materials on record and considering the grounds urged by the appellant, it also framed the points for consideration, which are as follows:-

1) Whether the judgment and decree under appeal are contrary to law and evidence on record?

2) Whether there are any grounds for this Court to interfere in the judgment and decree under appeal?

3) Whether the plaintiffs were entitled for the relief of declaration, injunction and cancellation of sale-deed bearing document No. 2376/72-73 dtd. 3.11.1972?

4) What decree or order?

and answered the said Point Nos. 1 to 3 in the negative, re-appreciating the oral and documentary evidence on record, had affirmed the judgment of the trial Court and dismissed the regular appeal. As could be seen from the trial Court judgment and first appellate Court judgment, the entire issues are framed on the allegations and counter allegations between the plaintiffs and defendants and the parties have led evidence on the basis of the contents of the documents and also on the basis of revenue records. There is absolutely no legal issue raised by the parties to the proceedings. No legal issue has been raised either by the trial Court or first appellate Court. Therefore, I do not find any strong reasons to frame any question of law in this particular case. So when the trial Court and the first appellate Court, on appreciation of factual matrix arrived at a conclusion that when there is no substantial question of law raised between the party, the question of entertaining Regular Second Appeal does not arise.

Before parting with this judgment, learned counsel Sri.Sachin M. Mahajan, brought to my notice that third plaintiff has categorically taken up the contention that the document was not signed by him. He disputed his thumb impression. Therefore, application was made before the trial Court for sending the said document for expert''s opinion. The said application came to be dismissed by the trial Court. Even the same was urged before the first appellate Court. But, both the trial Court and first appellate Court did not give any finding so far as this particular aspect is concerned. Admittedly, when the application for referring this document to the expert opinion was rejected, no further steps have been taken by the plaintiff No. 3 in order to challenge the said order passed by the trial Court. As I have already referred to above, even assuming that the plaintiff No. 3 has not signed the said document, in view of the pleadings already referred to that the property was given to defendant, by way of mortgage for the purpose of discharging the legal necessity of the family or for discharge of the debt. Therefore, even if third plaintiff did not sign that document, it would definitely bind the third plaintiff also. Even otherwise, if he says that he has not executed that document, he would have only stated that the said document is not binding upon him and he would have claimed right of partition against defendant as well as against father and brother, that has not been done. Therefore, it clearly goes to show that in order to defeat the rights of the defendant, the plaintiffs have filed the above said suit. Therefore, I do not find any strong reasons to interfere with the judgment of the trial Court and first appellate Court. Hence the appeal is liable to be dismissed. Accordingly, I proceed to pass the following:-

The Regular Second Appeal is dismissed at the stage of admission.