Syed Haji and Others vs Sardar Ahamed and Others

B.S. Patil, J.—This Regular Second Appeal is by defendants 1 to 6 challenging the judgment and decree dated 05.08.2008 passed by the learned Principal District Judge, Kolar, allowing R.A. No. 195/2007 filed by the plaintiffs and setting aside the judgment and decree dated 26.09.2007 passed by the learned Principal Civil Judge (Sr.Dn.) and CJM, Kolar, dismissing the suit O.S. No. 182/2000 filed by plaintiffs-respondents 1 and 2 herein.

For the sake of convenience, parties are referred to by their ranks in the Trail Court.

Plaintiffs-respondents 1 and 2 herein instituted the suit seeking declaration of their title over the suit schedule properties and for permanent injunction against defendants 1 to 7 restraining them from interfering with their peaceful possession and enjoyment of the suit properties. The suit schedule properties are Sy. No. 124 measuring 8 acres 28 guntas and Sy. No. 125 measuring 7 acres 26 guntas, both situated at Karadubande Hosahalli Village, Narasapura Hobli, Kolar Taluk.

The case of the plaintiffs in brief is, that one Syed Dastagir Sab was the original owner of the suit schedule properties. He sold the same in favour of Syed Mahaboob and Mohammed Iliyaz under two registered Sale Deeds of even dated 01.03.1991 for sale consideration of Rs. 34,000/- and Rs. 30,000/-, respectively. The purchasers in turn sold the properties to the plaintiffs under two registered Sale Deeds of even dated 30.05.1996. Thus, the plaintiffs became the absolute owners and started enjoying the properties as such. Defendants 1 to 6, being sons of late Syed Dastagir Sab, born to his second wife, without having any manner of right, title or interest over the same, challenged the khatha transferred and mutation effected in the name of the plaintiffs by approaching the Assistant Commissioner, Kolar Sub-Division, Kolar, which was eventually dismissed. Though the revenue records including pahani and tax paid receipts disclosed the name of the plaintiffs as owners in possession, the defendants tried to dispossess the plaintiffs by attempting to interfere with their possession on 19.06.2000 and 25.06.2000. Therefore, the plaintiffs were constrained to institute the suit seeking declaration of their title and for permanent injunction.

Defendants 1 to 6 filed common written statement denying the plaint averments. They urged that Syed Dastagir Sab, his first wife and their children were residing at Bangalore doing mandi business, whereas his second wife and her children were looking after all agricultural properties of Syed Dastagir Sab. They also urged that both the lands were subject matter of tenancy dispute and Pillappa, father of defendant No. 7 had filed application in Form No. 7 claiming occupancy rights. They also urged that Syed Dastagir Sab had executed a Settlement Deed in favour of defendants 1 to 6 i.e., children of his second wife allotting the suit schedule properties in their favour. It was further urged by the defendants that there was dispute between the first wife and her children on one hand and the second wife and her children on the other; the first wife and her children managed with Syed Dastagir Sab to cancel the Settlement Deed, though he had no such right to cancel. But later, dispute between the children of first wife and second wife came to be settled, whereunder defendants 1 to 6 became absolute owners of all the landed properties, whereas the first wife and her children became the owners of properties situated at Bangalore. Defendants 1 to 6 further urged that Sale Deeds of the year 1991 and 1996 were created by collusion by the plaintiffs to defeat the defendants'' right. They also contended that the suit was not maintainable as the matter was pending before the Land Tribunal.

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

"i) Whether the plaintiffs prove title to suit schedule properties?

ii) Whether the plaintiffs prove their lawful possession over suit properties?

iii) Whether the plaintiffs prove interference of defendants?

iv) Whether Court fee paid is insufficient?

v) Whether suit is bad for non-joinder of necessary parties?

vi) Whether suit is not maintainable?

vii) Whether suit is barred by res judicata?

viii) What decree or order?"

In support of their case, plaintiffs 1 and 2 examined themselves as P.Ws.1 and 2. Four other witnesses were examined as P.Ws.3 to 6. Exs. P1 to P21 were produced and marked. Defendants on their part examined defendant No. 5 as D.W.1 and two other witnesses as D.Ws.2 and 3. Exs. D1 to D66 were produced and marked. On consideration of the oral and documentary evidence placed on record, the Trial Court found that plaintiffs were unsuccessful in establishing their right and possession over the suit schedule properties and hence, the suit was liable to be dismissed. It recorded a finding that the registered Sale Deeds executed on 01.03.1991 by Syed Dastagir Sab in favour of vendors of the plaintiffs and the subsequent registered Sale Deeds dated 30.05.1996 executed in favour of the plaintiffs by their vendors had no effect in law as late Syed Dastagir Sab during his lifetime and on 18.09.1978 had executed a Settlement Deed in favour of defendants 1 to 6 allotting these properties in their favour. Therefore, as per Ex. D3 - Settlement Deed, which was a registered document, defendants 1 to 6 had become owners.

The Trial Court further came to the conclusion that plaintiffs had failed to establish that the Settlement Deed had been cancelled and Syed Dastagir Sab had saleable right in the property. The Trial Court also found that when there were so many civil and revenue proceedings between the 1st wife and her children and 2nd wife and her children from deceased Syed Dastagir Sab in respect of the suit schedule properties and other properties, the defendants putting their signatures on Ex. P1 and Ex. P2 was unbelievable and imaginary one. Therefore, the Trial Court inferred that it appeared from the record that the vendors of the plaintiffs and the children of 1st wife of deceased Syed Dastagir Sab had managed to create the sale deeds Exs. P1 and P2 and other documents in order to harass and dupe the 2nd wife and her children. Thus, the Trial Court dismissed the suit. Aggrieved by the same, plaintiffs preferred appeal before the lower Appellate Court.

The lower Appellate Court has re-appreciated the evidence on record, both oral and documentary and has reversed the findings recorded by the Trial Court. The lower Appellate Court has found that admittedly Ex. D3 - Settlement Deed had been cancelled during the lifetime of Syed Dastagir Sab and therefore, Syed Dastagir Sab had all rights to alienate the properties. In this connection, the averments made in the written statement filed by defendants 1 to 6 and in the evidence adduced by the defendants stating that Ex. D3 -Settlement Deed had been cancelled has been referred to and relied upon by the lower Appellate Court. In addition, the lower Appellate Court has placed reliance on the fact that Exs. P1 and P2 Sale Deeds were executed by Syed Dastagir Sab, father of defendants 1 to 6 and their due execution had been established by leading evidence of witnesses to the said documents. The vendors of the plaintiffs have been examined as PWs-3 and 4. They have spoken in support of the Sale Deeds dated 01.03.1991 executed by Syed Dastagir Sab. To the said Sale Deeds, children of Syed Dastagir Sab namely, defendants 2, 3 and 6 have been signatories as consenting witnesses and that the said fact had been also established by the evidence of PWs-3 and 4.

Having regard to the admission made in the Written Statement and in the evidence of the defendants and in the light of evidence of witnesses examined by the plaintiffs for proving the registered Sale Deeds dated 01.03.1991 and 30.05.1996, the lower Appellate Court has held that plaintiffs successfully proved their title and possession over the suit schedule properties.

Though defendants had denied the signatures of defendants 2, 3 and 6 on Exs. P1 and P2 - Sale Deeds as consenting witnesses, the lower Appellate Court, by re-appreciating the evidence of witnesses examined by the plaintiffs and after examining the very documents - Exs. P1 and P2, has come to the conclusion that plaintiffs had proved that defendants 2, 3 and 6 were consenting witnesses to Exs. P1 and P2 - Sale Deeds. As the lower Appellate Court persuaded itself to hold that evidence of the plaintiffs and their witnesses established that defendants 2, 3 and 6 were consenting witnesses and had signed the sale deeds - Exs. P-1 and P-2 in that capacity, there was no need to refer their signatures for the opinion of the handwriting experts.

While admitting this Regular Second Appeal, this Court has framed the following substantial questions of law?

"1) Whether the decision of the first appellate court is sustainable in the absence of a finding on the effect of cancellation deed entered into by the parties by which the settlement deed executed earlier was cancelled?

2) Whether the judgment of the appellate court is sustainable as it appears it has failed to consider the documentary evidence on record to record its finding?"

Sri M.S. Purushothama Rao, learned counsel for the appellants - defendants 1 to 6 has contended that once Syed Dastagir Sab executed a registered Settlement Deed dated 18.09.1978 in favour of his sons as per Ex. D3, he lost all right over the properties and the Sale Deeds executed by him on 01.03.1991 purporting to transfer the properties in favour of Syed Mahaboob and Mohammed Iliyaz were of no avail. Consequently, the further Sale Deeds executed on 30.05.1996 by the purchasers in favour of the plaintiffs would not confer any title to the plaintiffs. It is his submission that there cannot be cancellation of Settlement Deed duly registered and at any rate, such cancellation was neither pleaded, nor established by the plaintiffs and therefore, the lower Appellate Court could not have decreed the suit. It is his further submission that mere reference to cancellation deed by defendants 1 to 6 in their written statement cannot be taken as an admission on their part absolving the plaintiffs of their obligation to prove the same. In support of his contention that once a Settlement Deed has been executed, the settler loses his right and the same cannot be cancelled by executing a Cancellation Deed, Sri Purushothama Rao, has placed reliance on the judgment of this Court in the case of V. Ethiraj Vs. S. Sridevi Since deceased by her L.Rs. , Prabhakar and B.K. Sundara Rajan, AIR 2014 Kar 58 : (2013) 4 AKR 759 : (2014) 1 KarLJ 273 .

Sri G.S. Venkat Subba Rao, learned counsel appearing for respondents 1 and 2/plaintiffs strongly supports the findings recorded and the conclusion arrived at by the lower Appellate Court. It is submitted by him that it was the case of defendants 1 to 6 in their written statement that the Settlement Deed had been cancelled which was later reiterated in the course of evidence and that the Settlement Deed of the year 1978 was only in respect of Sy. No. 125 as admitted by D.W.1. He urges that admittedly the property was the absolute property of Syed Dastagir Sab; defendants 2, 3 and 6 have signed Exs. P1 and P2 - Sale Deeds and Ex. P1 related to Sy. No. 124, whereas Ex. P2 related to Sy. No. 125; the defendants have not challenged the same and only when the plaintiffs filed the suit seeking declaration during the year 2000, after lapse of nearly one decade, a plea has been taken in the written statement stating that cancellation of Settlement Deed was by manipulation. It is his contention that as the cancellation of Settlement Deed was admitted by the defendants, there was no need for the plaintiffs to adduce any evidence regarding the same. He urges that witnesses have been examined to prove the execution of Exs. P1 and P2 - Sale Deeds. Inviting the attention of the Court to the very case of the defendants put forward by way of suggestion made to P.W. 1 that signatures of defendants 2, 3 and 6 were forged, he points out that had it been so, nothing prevented the defendants from challenging the Sale Deeds. He also points out that there was no suggestion made to the plaintiffs or to the witnesses that Settlement Deed was not cancelled. He urges that as the signatures of defendants 2, 3 and 6 had been identified by P.W.3, the vendor of the plaintiffs, who is the signatory to Exs. P1 and P2, the fact that defendants 2, 3 and 6 had signed the registered Sale Deeds stood established and the burden which the defendants took upon themselves to establish the allegations of forgery was not at all established. He has placed reliance on the judgment of the Apex Court in the case of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., (2001) 251 ITR 84 : (2001) 2 JT 407 : (2001) 1 SCALE 712 : (2001) 3 SCC 179 : (2001) 1 SCR 948 : (2001) AIRSCW 723 : (2001) 1 Supreme 642 to contend that if no foundation in the pleadings for the substantial question raised has been laid, the same cannot be considered. He has also placed reliance on the judgment of the Apex Court in the case of Subbegowda (Dead) by Lr. Vs. Thimmegowda (Dead) by Lrs., AIR 2004 SC 2428 : (2004) 3 CTC 359 : (2004) 5 JT 274 : (2004) 4 SCALE 781 : (2004) 9 SCC 734 : (2004) 2 SCR 277 Supp : (2004) AIRSCW 2888 : (2004) 3 Supreme 331 to contend that a Settlement Deed can be cancelled where it is expressly so reserved.

On consideration of the entire materials on record, in the light of the findings recorded by the lower Appellate Court and keeping in mind the substantial questions raised, it is clear that Syed Dastagir Sab was the absolute owner of the properties. He had executed a Settlement Deed dated 18.09.1978 Ex. D3 in favour of his minor sons by appointing one Muneer as minor guardian. Syed Dastagir Sab had two wives. There were disputes between the children of the two wives. It is the case pleaded by defendants 1 to 6 in paragraph 17 of the written statement that during the year 1990 there was some dispute between the children of first wife and children of second wife and that they managed Syed Dastagir Sab to cancel the Settlement Deed. The 1st defendant claims that he attained majority during the year 1992 and took the physical possession of all the properties and it is he who was acting as guardian of other minor children. In the next breath, it is contended that during 1990 as there was some dispute between the children of first wife and children of second wife, late Syed Dastagir Sab cancelled the Settlement Deed. The registered Sale Deed executed by Syed Dastagir Sab in favour of the vendors of the plaintiffs by name Syed Mahaboob and Mohammed Iliyaz is of the year 1991. The properties which stood in the name of Dastagirsab as on the date of sale have been transferred in the name of the purchasers in the year 1991. Admittedly, revenue entries changed in the name of the purchasers were unsuccessfully challenged by the defendants before the Assistant Commissioner.

The second set of Sale Deeds were executed by the purchasers from Syed Dastagir Sab in favour of the plaintiffs during 1996. Even then, no action was initiated to challenge the Sale Deeds. On the other hand, defendants 2, 3 and 6 have become consenting witnesses and have signed the registered Sale Deeds - Exs. P1 and P2. This clearly discloses that Syed Dastagir Sab and children of the second wife have consciously transferred the right, title and interest in the suit schedule properties in favour of the vendors of the plaintiffs. Their silence in not raising their little finger against the transfer of properties twice in favour of third parties disclosed that despite the Settlement Deed of the year 1978, they had no objection for transfer of properties and indeed joined Syed Dastagir Sab in effecting transfer by becoming consenting witnesses. Even as on today, they have not challenged these Sale Deeds. The validity of these Sale Deeds is not in question. The lower Appellate Court has found that signatures of defendants 2, 3 and 6 as consenting witnesses to the Sale Deeds had been proved. It has rightly held that the factum of cancellation of the Settlement Deed was not in dispute as the defendants themselves conceded the same, but pleaded that it was obtained by manipulation, which they had failed to establish. In such circumstances, reliance placed by the appellant on the judgment of this Court in the case of V. Ethiraj Vs. S. Sridevi Since deceased by her L.Rs. , Prabhakar and B.K. Sundara Rajan, AIR 2014 Kar 58 : (2013) 4 AKR 759 : (2014) 1 KarLJ 273 to contend that once rights are vested in favour of transferee under registered Deed of Settlement, transferee becomes absolute owner and if such a Deed has to be cancelled on grounds of fraud, undue influence, or mistake, it could be done only on proof of such a ground in a suit brought under the provisions of Specific Relief Act and mere execution of Deed of Cancellation and registering it would not result in cancellation will be of no help.

The evidence on record, as re-appreciated by the lower Appellate Court, discloses that even after the registered Settlement Deed was executed in favour of minors, Syed Dastagir Sab along with the persons in whose favour Settlement Deed was executed had effected transfer of suit schedule properties, but the only distinction being that the sons were not the transferors, but were only the consenting witnesses.

The other sons who did not join in executing the registered Sale Deeds either as transferors or as consenting witnesses have not challenged the Sale Deeds. By the time plaintiffs filed the suit in the year 2000, almost nine years had lapsed since the date of execution of the first set of Sale Deeds and even after the plaintiffs sought for declaration of their title by filing the suit in the year 2000, defendants have not made any counter claim. In such circumstances, the findings recorded by the lower Appellate Court cannot be termed as illegal.

The lower Appellate Court has referred to and examined all the documents produced in the course of evidence. It is not brought to the notice of the Court that any of the relevant documents have been ignored while recording its findings by the lower Appellate Court. Therefore, the two substantial questions raised have to be answered against the appellants.

In the result and for the foregoing reasons, this appeal is liable to be dismissed. Accordingly, the same is dismissed. In the circumstances of the case, there shall be no order as to costs.