Puttaswamy Gowda and Others vs Venkatappa and Others

Budihal R.B., J.—This regular second appeal is preferred by the appellants who are legal representatives of the original defendant against the respondents, who were the plaintiff and defendant No. 1(e) respectively, being aggrieved by the judgment and order passed by the first Appellate Court in R.A. No. 4/2000 dated 5.1.2006. The appellants have challenged the validity and correctness of the said order on the grounds as mentioned in serial Nos. 5 to 16 of the appeal grounds.

While admitting the appeal, this Court has framed the following substantial question of law:

"Whether the first Appellate Court was justified in reversing the judgment and decree of the trial Court without there being sufficient oral and documentary evidence to establish the allegation of fraud as alleged by the plaintiff?" 3. The brief facts of the case of parties before the trial Court are that respondent No. 1-plaintiff has filed the suit in O.S. No. 126/1987 seeking the relief of declaration in respect of the suit schedule property. It is alleged by the plaintiff that he is the owner in possession of land bearing Sy. No. 325 (old No. 74 block 9) described in the schedule to the plaint. Plaintiff has acquired this property under the registered sale deed dated 30.4.1975 executed by Chikkalingegowda. He has been in continuous possession, cultivation and enjoyment of the suit land as absolute owner. Defendant during the year 1978 persuaded the plaintiff and coerced him to sell the suit property for a sum of Rs. 10,000/- so that the plaintiff can acquire more extent of agricultural lands. The defendant and his henchmen so representing has got up a document on 20.6.1978 purporting to be a sale deed for a sum of Rs. 10,000/- and agreeing to pay the entire amount of Rs. 10,000/- at the time of registration of the document and that the possession shall be delivered to him/defendant after the sale price of Rs. 10,000/- was paid to the plaintiff at the time of registration of the document. The defendant misrepresenting fraudulently obtained number of signatures of the plaintiff on several stamp papers. Plaintiff requested defendant to complete the transaction by paying Rs. 10,000/- before the Sub-registrar and get the registration of the document. Defendant went on postponing and did not ask the plaintiff to go for registration even after long period. Plaintiff to his surprise received notice from the office of the Sub-registrar, Ramnagaram asking him to appear for the registration of the document. Then plaintiff came to know that the document presented for registration by the defendant before the Sub-registrar is not the document purported to have been entered and executed by the plaintiff but altogether a different document purported to have been executed by the plaintiff for a sum of Rs. 4,000/- alleging to have already received a sum of Rs. 500/- before the attesting witnesses and said to have already delivered possession of the suit property. Plaintiff has denied execution of the document before the Sub-registrar and stated that he has not executed the document presented by the defendant and it is a forged and concocted document got up by the defendant misrepresenting and in collusion with his relatives and kith and kins. Plaintiff has not executed any document in favour of the defendant nor delivered possession of the suit schedule property to the defendant at any time. Therefore, plaintiff has denied alleged execution of the document dated 20.6.1978 which was presented for registration by the defendant. The Sub-registrar has refused registration of document by his order dated 17.11.1978. The defendant after lapse of time has filed an appeal against the above said order of refusal to register the document before the Special Deputy Commissioner and District Registrar, Bangalore in R.A. No. 5/1978-79. The plaintiff has contested the said matter. Defendant has managed to obtain an order for registration of the said document after a protracted proceeding by an order dated 11.5.1987 without any opportunity to the plaintiff. Hence, it is the case of the plaintiff that the proceedings before the District Registrar are illegal, arbitrary, vitiated by many irregularities and illegalities and in violation of principles of natural justice and not binding on the plaintiff. Plaintiff recently came to know of the order of the District Registrar on 20.07.1987. The orders of the District Registrar and Sub-Registrar are illegal and arbitrary. Hence, he has filed the suit.

Defendant has filed his written statement. He has admitted that plaintiff was the owner of the suit schedule property. But he has denied all the allegations made against him. It is contended that plaintiff has ceased to be the owner of the schedule property by virtue of the sale deed executed in favour of the defendant. He has also denied the allegations made by the plaintiff that the defendant has committed fraud on the plaintiff and the said document was obtained by misrepresentation as alleged in the plaint. He has also denied the allegation regarding the contention of the plaintiff that the consideration amount though agreed at Rs. 10,000/- it was mentioned as Rs. 4,000/- only in that document. It is contended that against the order of rejection by the Sub-registrar defendant preferred an appeal before the District registrar and Deputy Commissioner, Bangalore and as per the order of District Registrar dated 11.5.1987 in R.A. No. 5/78-79 the sale deed dated 20.6.1978 was executed by the plaintiff in favour of the defendant and the same was registered by the Sub-registrar, Ramanagaram. Hence, he has sought to dismiss the suit of the plaintiff.

On the basis of the said pleadings, the lower Court has framed the following issues:

"(i) Whether the defendant proves that the plaintiff received Rs. 500/- in advance and executed a sale deed dated 20.6.78 agreeing to receive Rs. 3,500/- towards remaining consideration before the Sub-Registrar at the time of Registration and failed to turn up to register the document?

(ii) Whether the plaintiff proves that he is still the owner of the suit property and the defendant by misrepresentation obtained the sale deed referred to in issue No. 1?

(iii) Whether the plaintiff is entitled for declaration or injunction?"

Addl. No. 1: Whether the plaintiff proves that the proceedings before the Sub-Registrar and before the District Registrar pertaining to the sale deed dated 20.07.1978 is opposed to law and is illegal?"

and after conclusion of the trial, ultimately, it has dismissed the suit of the plaintiff. Aggrieved by the judgment and decree passed by the trial Court, the plaintiff preferred an appeal before the first appellate Court in R.A. No. 4/2000. The first appellate Court after considering the merits of the case, has allowed the appeal and set aside the judgment and decree passed by the trial Court. Being aggrieved by the judgment and decree of the first appellate Court, the appellants, who are the legal representatives of the original defendant have preferred this appeal.

Heard the arguments of the learned counsel appearing for the appellants and the learned counsel appearing for the respondents.

I have perused the pleadings of the parties presented before the trial court, the judgment and decrees passed by the courts below, grounds urged in the appeal memorandum and also the decisions relied upon by the learned counsel for the parties.

Perusing the judgment of the first appellate court, the first appellate court has clearly observed in its judgment that the trial court has not framed the necessary and proper issues in the case regarding limitation, pecuniary jurisdiction and also on the court fee aspect. Even then, the first appellate court has proceeded to dispose of the appeal on merits ignoring the said observation with regard to non-framing of the issues. The first appellate court has mainly relied upon the document produced by the appellants before it regarding the order passed by the District Registrar in the appeal preferred against the order of the Sub Registrar in refusing to register the sale deed at the first instance which was presented by the respondent No. 1 plaintiff. The first appellate court by referring to the document, at para No. 24 of the said judgment has observed that from the facts, it is clear that the document has to be presented for registration within 30 days from the order passed by the District Registrar under sub-section (2) of Section 75 of the Act and referring to the commentary given by Sanjeev Rawe''s Registration Act, the Edition 2000, the first appellate court has further observed as under:

"But if the document is not duly present and within 30 days after the making of the registrar''s order, the Sub-Registrar cannot be compelled to register the document. This is being held as per ruling reported in Gangaram Ranaba Vs. Datto Appaji Powar and Others, . It is also further held that in deed the Sub-Registrar has no jurisdiction to register a document presented after the lapse of 30 days from the date of order passed by the Registrar under the first paragraph of Section 75 of the Registration Act, even if the time of such presentation is extended by a subsequent order of Sub-Registrar. It is not a mere matter of procedure. Non-compliance required of section 2 of section is not curable under Section 87 of the Act. This fact has the support of the ruling reported in Motahar Ali Vs. Sk. Abdul Malek and Another, . A document registered after the said period of 30 days is not validly registered and creates no title. The order of Registrar directing the registration of document after the lapse of 30 days from the date of the order passed by him under the first paragraph of Section 75 of the Registration Act is ultra virus. Section 5 of the limitation Act has no application to such a case and time for registration cannot be extended under the section. Where a person is affected by a deed, which he impeaches as not duly registered it is open to him to make an objection although he was not a party to the deed. Time runs from the date of the order and it is wholly immaterial whether the party had the knowledge of the order made by the Registrar or not." 9. Therefore, the first appellate court held that the order passed by the District Registrar is dated 11.5.1987 and the endorsement found on Ex. D.2 speaks that the documents are presented for registration as per the orders of District Registrar Bangalore Rural District vide order dated 11.5.1987 and the copy received on 24.7.1987 and registration was made on 11.8.1987. It is observed that the respondent ought to have presented Ex. D.2 sale deed for registration within 30 days from the date of the order and there is no question of waiting for an order. Thirty days expires on 10.6.1987. Therefore, the registration was effected after more than 1 1/2 months after the lapse of 30 days as required under Section 75(2) of the Registration Act. Therefore, referring to the said aspect, the first appellate court mainly concentrated on the registration aspect of the sale deed so also the limitation aspect.

Looking to the judgment of the first appellate court, it has not referred to the oral and documentary evidence produced by the parties before the trial court and no discussion has been made on the oral and documentary evidence. As I have already observed, the first appellate court has not framed any issues on the aspect of limitation, payment of court fee and the pecuniary jurisdiction, though there is a power to the first appellate court, which is the court of law and facts, to frame additional issues, if any, under Order XLI Rule 27 of CPC, it has not framed the said issues. The first appellate court, being the court of law and facts, have to appreciate the materials, in compliance of Order XLI Rule 31 of CPC. But looking to the judgment of the first appellate court, it is not in compliance of the said provisions. In this connection, I am referring to the judgment of the Hon''ble Supreme Court in Civil Appeal No. 1467/2011 (Arising out of S.L.P.(C) No. 19632 of 2007 Wherein the Hon''ble Supreme Court has held as under:

"21. Order XLI, Rule 31 CPC provides for a procedure for deciding the appeal. The law requires substantial compliance of the said provisions. The first appellate Court being the final court of facts has to formulate the points for its consideration and independently weigh the evidence on the issues which arise for adjudication and record reasons for its decision on the said points. The first appeal is a valuable right and the parties have a right to be heard both on question of law and on facts. (vide: Moran Mar Basselios Catholicos and Another Vs. The Most Rev. Mar Poulose Athanasius and Others, ; Thakur Sukhpal Singh Vs. Thakur Kalyan Singh, ; Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., ; Madhukar and Others Vs. Sangram and Others, ; G. Amalorpavam and Others Vs. R.C. Diocese of Madurai and Others, ; Shiv Kumar Sharma Vs. Santosh Kumari, ; and Gannmani Anasuya and Others Vs. Parvatini Amarendra Chowdhary and Others, .

The first appellate Court should not disturb and interfere with the valuable rights of the parties which stood crystallized by the trial Court''s judgment without opening the whole case for re-hearing both on question of facts and law. More so, the appellate Court should not modify the decree of the trial Court by a cryptic order without taking note of all relevant aspects, otherwise the order of the appellate Court would fall short of considerations expected from the first appellate Court in view of the provisions of Order XLI, Rule 31 of CPC and such judgment and order would be liable to be set aside. (Vide B.V. Nagesh and Another Vs. H.V. Sreenivasa Murthy, ."

Therefore, in view of the said judgment of the Hon''ble Supreme Court and perusing para Nos. 9 and 10 of the written statement filed by the defendant before the trial court, specific contentions were raised that the suit of the plaintiff is barred by time, the court has no pecuniary jurisdiction to entertain the suit and the valuation of the property for the purpose of court fee is also not proper. Regarding these contentions, the trial court has not framed the issues. Therefore, to do substantial justice to the parties, it is necessary that issues which are arising form the pleadings of the parties will have to be framed and opportunity is to be given to both sides to place the material to discharge the burden cast upon them as per the said issues. Hence, judgment and orders passed by the courts below are liable to be set aside.

Accordingly, the appeal is allowed. The judgment and decrees passed by the courts below are set aside and the matter is remanded back to the trial court. The trial court has to frame the necessary issues arising out of the pleadings of the parties and to dispose of the matter afresh by giving opportunity to both sides to lead their further evidence if any.