before between: s/o.honnappa -...
TRANSCRIPT
1
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 5th DAY OF OCTOBER 2012
BEFORE
THE HON'BLE MRS.JUSTICE B.S. INDRAKALA
RSA.No.3505/2006
BETWEEN: Sri. Parameshwarappa, S/o.Honnappa Since dead by his L.Rs
1. Smt. Girijamma
W/o.Late Parameshwarappa Aged 60 years
2. Sri. Honnappa,
S/o.late Parameshwarappa Aged 40 years
3. Smt. Honnamma
D/o.late Parameshwarappa Aged 37 years
4. Sri. Shadakshari
S/o.late Parameshwarappa Aged 29 years
5. Sri. Prabhu
S/o.late Parameshwarappa Aged 24 years
2
6. Sri. Nagaraja S/o.late Parameshwarappa Aged 20 years
7. Jyothi D/o.late Parameshwarappa Aged 18 years
All are residents of Malleshwara Village
Kasaba Hobli, Kadur Taluk Chikmagalur District-577 548
… APPELLANTS (By Sri.K.V.Narasimhan, Advocate)
AND: Sri. G.Krishnamurthy, 64 years S/o. Late Gundojirao R/o.Kadur Town, Kadur-577 548
Chikmagalur District ...RESPONDENT
(By Sri.S.G.Bhagavan, Advocate) -0-0-0-0-
This RSA is filed under Section 100 of CPC against the judgment and decree dated 21.4.2006 passed in R.A.No.75/20002 on the file of the Presiding Officer, Fast Track Court, Kadur, allowing the appeal and reversing the judgment and decree dated 21.10.2002 passed in O.S.No.374/1987 on the file of the Addl. Civil
Judge (Jr.Dn), Kadur.
3
This appeal coming on for hearing, the same having been heard and reserved for pronouncement of judgment, the Court delivered the following:-
JUDGMENT The appellant-plaintiff herein filed O.S.No.374/87
on the file of the Additional Civil Judge(Jr.Dn.), seeking
a declaration that the sale deed executed by him dated
20.8.1984 is nominal, void, never acted upon and
sought cancellation of the same and also for
consequential relief of permanent injunction restraining
the defendant from alienating the property mentioned in
the schedule to the plaint.
2. The said suit was partly decreed holding that
the sale deed executed by the plaintiff in favour of the
defendant was nominal, void and never acted upon by
the judgment dated 21.10.2002. Aggrieved by the said
judgment, the defendant preferred R.A.No.75/02 on the
file of the FTC, Kadur. The said appeal was allowed
4
setting aside the judgment passed in the original suit
thereby dismissing the said suit O.S.No.374/87.
3. Aggrieved by the said judgment passed in
RA.No.75/02 the plaintiff since deceased represented by
his legal representatives filed the present second appeal
inter-alia contending amongst other grounds that the
first appellate Court erred in not appreciating the
evidence in proper perspective, has further contended
that the substantial question of law involved in this
appeal is as to whether the appreciation of evidence and
documents by the first appellate Court is perverse and
the whether first appellate Court was justified in
reversing the judgment and decree of the trial Court etc.
4. For the sake of convenience, the parties herein
are referred to by their respective rank as appellant-
plaintiff and respondent-defendant as arrayed before
the Court of the first instance.
5
5. O.S.No.374/94 was filed by the plaintiff
alleging that as his brother who was unemployed
wanted to purchase a lorry during February 1984, he
entered into an agreement with one B.K. Ibrahim of
Mangalore to purchase the lorry bearing Regn.No.CNX
6003 for sale consideration of Rs.2,00,000/-; he paid
Rs.20,000/- as advance on the date of the agreement
and took possession of the said lorry from him.
Further, it is contended that the balance of sale
consideration of Rs.40,000/-was to be paid by the end
August 1984 and the remaining Rs.1,40,000/- to be
paid by the plaintiff towards the loan installments of the
hire purchase account with Canara Bank.
6. It is specifically alleged that the plaintiff was
running short of money; after taking possession of the
lorry, his brother was running the said lorry for hire and
the defendant was using the said lorry for
transportation of stone from the quarry. Further it is
6
alleged that the plaintiff approached the defendant for a
loan of Rs.25,000/- on 30.7.1984 so as to pay the
balance sale consideration of the sale price of the lorry
to which the defendant agreed to advance Rs.25,000/-
and got executed an on demand promissory note from
the plaintiff; it was further agreed between the parties
that the defendant was entitled to adjust the lorry hire
charges towards the said loan and the balance if any
was to be paid by the plaintiff with interest at 18% per
annum. Thereafter, the defendant deducted Rs.350/- which
was due by the plaintiff as hand loan and paid loan amount
of Rs.24,650/- to the loan amount of the plaintiff by
issuing cheques drawn on SBM, dated 30.7.1984 and
10.8.1984 for a sum of Rs.17,400/- and Rs.7,250/-
respectively in favour of one B.K. Khader, the brother of
the said B.K. Ibrahim. It is further stated that the said
cheques were so issued at the instance of the plaintiff’s
request with regard to the loan amount of Rs.25,000/-
advanced by the defendant; however, on presentation of
7
the said cheques, the same were bounced and when the
defendant enquired the plaintiff as to why the said
cheques were dishonoured the plaintiff told the
defendant that he needs one and half months time to
adjust the amount due to unforeseen financial
restraints; the defendant demanded further security of
the immovable property for the aforesaid loan on the
ground that the amount was huge and he was not
prepared to hand over the cheques unless the plaintiff
furnishes adequate security of immovable property.
Further it is contended that as demanded by the
defendant, the plaintiff executed a registered sale deed
with respect to the schedule property with an assurance
by the defendant that the sale deed is only a nominal
deed for the purpose of security and that he would
reconvey the property as soon as the loan is cleared;
thus, the plaintiff executed a nominal sale deed in
favour of the defendant for the sale consideration of
Rs.10,000/- on 20.8.1984, but, even subsequently the
8
cheques were dishonoured and the plaintiff was unable
to fulfill the conditions; as such the said B.K. Ibrahim
cancelled the agreement and took possession of the
lorry from the plaintiff by forfeiting the initial advance
paid. In the circumstances, the plaintiff requested the
defendant to reconvey the schedule property as the loan
consideration had failed; the defendant went on
postponing the event by giving appeasing reply; On
4.12.1984 there was a panchayath and the defendant
agreed to reconvey the property in favour of the plaintiff
by executing two sale deeds, one in favour of the brother
of the plaintiff Yellappa and another in favour of the wife
of the plaintiff by name Girijamma; accordingly, stamp
papers were purchased and sale deeds were also written
on the stamp papers, but, the defendant who had
promised to execute the sale deed never turned up and
failed to execute the same for nearly six months; the
plaintiff persisted and demanded the defendant to
execute the sale deed, but, the defendant lodged a
9
complaint with Kadur Police making false allegations;
after investigation charge sheet was also filed in
C.C.No.684/85 on the file of the JMFC, Kadur.
However, the said case ended in acquittal on 14.7.1987.
In the circumstances, the plaintiff has filed the above
suit seeking cancellation of the deed as stated supra.
7. As against the case of the plaintiff, the
defendant amongst other grounds pleaded that by
paying sale consideration he obtained the sale deed with
regard to the suit schedule property and he is in
possession; after execution of the sale deed and taking
possession of the property he got the katha transferred
to his name i.e. the property was mutated in his favour
and he is in peaceful possession and enjoyment of the
same ever since the sale and it is also pleaded that the
suit as brought is not maintainable in law.
8. On the basis of the said pleadings the trial
Court framed the following issues:-
10
“1.Whether the plaintiff proves that,
the sale deed dated 20.8.1984 in
respect of suit properties in favour of the
defendant is nominal, void, sham,
without consideration and never acted
upon?
2.Whether the plaintiff proves that,
he is in lawful possession of the suit
schedule properties?
3.Whether the plaintiff further proves
that the defendant is interfering with his
possession and enjoyment of the suit
schedule properties?
4.Whether the plaintiff is entitled for
the reliefs prayed for?
5.To what order or decree?”
The plaintiff chose to examine three witnesses out of
whom P.W.1 is one of the L.R. of the plaintiff while
P.Ws.2 is one Basappa and P.W.3 is one B.K. Khader, in
whose favour cheques were issued and got marked the
11
documents Exs.P1 to P8. On behalf of the defendant
also three witnesses are examined and the documents
Exs.D1 to D3 are got marked.
9. Heard the arguments.
10. In view of the submissions made, the points
that arise for consideration are :-
“(1)Whether the impugned judgment
and decree passed in R.A.No.75/02 on
the file of the FTC, Kadur is liable to the
set aside?
(2)What order?”
11. The learned counsel for the appellant
submitted that the suit filed is well within time as per
the cause of action shown in the plaint which is also
duly substantiated by adducing evidence. Further, it is
contended by the learned counsel for the appellant that
the said sale deed was only a nominal sale deed
executed as security for the loan availed by him from
12
the defendant and the said sale deed was never acted
upon etc. He also narrated in detail with regard to the
pleadings put forth by the plaintiff as to how and under
what circumstances the said sale deed was executed.
12. Learned counsel for the appellant further
contended that under the sale deed there is no passing
of consideration and there is no delivery of possession of
the property to the purchaser; in other words, the
contents of the sale deed is not acted upon and further,
he submitted that in the said circumstances, as
possession was not delivered, seeking possession of the
property does not arise and as such the suit is not hit
by Section 34 of the Specific Relief Act. With regard to
limitation, he further submitted that the limitation
starts to run when the plaintiff refused to reconvey the
property.
13
13. Learned counsel for the appellant relying
upon the decision rendered in BADAT AND
CO.,BOMBAY vs EAST INDIA TRADING CO. (1963
STPL(LE) 2549 SC contended that under Order VIII Rule
3, it is not sufficient for the defendant in his written
statement to deny in general the grounds alleged by the
plaintiff but he must specifically deny each allegation of
fact of which he does not admit the truth except
damages, mere evasive written statement will not be
sufficient to substantiate the case of the defendant. In
the said decision, it is observed as hereunder:
11. Order VII of the Code of Civil Procedure prescribes, among others, that the plaintiff shall give in the plaint the facts constituting the cause of action and when
it arose, and the facts showing that the court has jurisdiction. The object is to enable the defendant to ascertain from the plaint the necessary facts so that he may admit or deny them. Order VIII provides for the filing of a written-statement, the
particulars to be contained therein and the manner of doing so; Rules 3,4 and 5
14
thereof are relevant to the present enquiry and they read: Order VIII R.3. It shall not be
sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.
R.4 Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus if it is alleged that he received a certain sum of money, it shall
not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be
sufficient to deny it along with those circumstances. R.5. Every allegation of fact in the plaint, if not denied specifically, or by necessary implication or stated to be not
admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability. Provided that the Court may in its discretion require any fact so admitted to
be proved otherwise than by such admission.
15
These three rules form an integrated code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences
flowing from its non-compliance. The written statement must deal specifically with each allegation of fact in the plain and when a defendant denies any such fact, he must not do so evasively, but answer the point of substance. If his denial of a fact
is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary.
Thus contended that on the allegations made with
regard to the availing of loan for purchase of lorry to the
brother of the plaintiff and also the circumstances
under which the cheques were issued to one Khader
and how they were bounced are not denied specifically,
which has to be construed as having been proved by the
plaintiff.
14. On perusal of the written statement, it is seen
that no doubt as contended by the learned counsel for
the appellant, the defendant has not specifically
16
traversed the said facts except stating that all those
allegations are extraneous to the suit transaction.
15. Learned counsel for the appellant relied upon
another decision rendered in SUHRID SINGH @
SARDOOL SINGH vs RANDHIR SINGH & AMP; Ors
rendered in Civil Appeal Nos.2811-2813/2010 dated
29th March 2010 and contended that as the plaintiff is
the executant of the alleged document, the sale deed,
suffice it if he seeks only the declaration that the deed is
invalid non-est or illegal or it is not binding on him and
he need not seek cancellation.
16. On perusal of the plaint, it is seen that the
plaintiff not only sought declaration that the sale deed
in question is nominal void or never acted upon but he
has also sought cancellation of the said sale deed. In
the foregoing circumstances, the said decision is of no
relevance.
17
17. As against the said submission of the
learned counsel for the appellant the counsel appearing
for the respondent submitted that basically the suit is
hit by limitation and also hit by the proviso to Section
34 of the Specific Relief Act. Further, he contended that
the substantial questions of law involved in the
proceedings can be formulated not only at the stage of
admission of the second appeal, but, also subsequently
at any time during the course of hearing of the appeal
and as such two more substantial questions of law that
require to be adjudicated upon in this appeal are that
(i) Whether the suit filed beyond three years from the
date of sale deed namely 20.8.1984 is well within
the time prescribed under the Limitation Act?
(ii) Whether mere declaration sought to declare the
sale deed as null and void without seeking
consequential relief of possession which fact flows
from the document itself is maintainable in view of
18
the provisio to Section 34 of the
Specific Relief Act?
18. With regard to one of the substantial
question of law which requires to be considered is
irrespective of whether defendant specifically pleaded in
his written statement or not, do arise in the case i.e.,
with regard to limitation, it is seen that as nowhere in
the document in question, anything is stipulated with
regard to performance of any part of the contract by the
defendant, it cannot be said that the Article 54 of
Schedule to the Limitation Act is applicable.
Admittedly, as discussed supra, the suit is for
declaration that the sale deed is invalid and for
cancellation. Thus, the said 2 reliefs are bound by
Articles 58 and 59 mentioned in the schedule to the
Limitation Act, 1963 which reads as under:
19
Description of Period of Time from which
Suit limitation period begins to
run
58. To obtain any Three yrs When the right to
other decla- sue first accrues
ration
PART – IV SUITS RELATING TO DECREES AND
INSTRUMENTS
59.To cancel or set
aside an instrument Three yrs When the facts
or decree or for entitling plaintiff
the recission to have the instru-
of a contract ment or decree
cancelled or set
aside or the
contract rescinded first become known
to him
_____________________________________________________
19. It is the specific case of the plaintiff that as
on the date of the execution of the alleged sale deed
itself, the same was executed as a security for the loan
availed by him in the circumstances detailed in the
plaint in which event, it has to be held that right to sue
first accrued on the date of execution of the said
20
document itself and hence, under Article 58 the plaintiff
ought to have filed the suit within three years from the
said date.
20. With regard to applicability of Article 59
regarding cancellation of the document, it is seen that
the facts entitling the plaintiff to have the instrument
cancelled also arose on the date of the execution of the
sale deed. In this regard, further it has to be seen that
as there is no covenant in the sale deed with regard to
reconveyance of the property, it cannot be said that
their existed any contract casting burden upon the
defendant to perform so as to fix the date of
commencement of limitation as the date when the
contract rescinded first became known to him. Thus, in
the circumstance of the case, when the plaintiff
executed the sale deed as only a security and it was a
nominal sale deed, dishonour of cheque subsequently
on 15.9.1994, when he got written two sale deeds on
21
stamp papers on 14.12.1994, will not stop the limitation
which has already begun to run and such act does not
amount to acknowledgement so as to hold that a fresh
period of limitation can be computed from the said date.
In other words, that will not renew the period of
limitation and it cannot also be said that there is any
further renewal of limitation by act of parties as
contemplated under the Limitation Act.
21. The cause of action is described as
20.8.1984 the date of execution of the sale deed,
15.9.1984 when cheques were dishonoured and
4.12.1994 – when two sale deeds were written, last week
of July 1997 when the defendants refused to reconvey.
In this regard, it is to be seen that on perusal of the sale
deed, the cheques were not the subject of consideration
in the said sale deed. It is clearly mentioned that the
amount was received by the vendor in cash. Thus, the
22
said dishonour of cheque cannot be linked to the
transaction dated 20.8.1984.
22. On perusal of Exs.P.6 and P.7, the cheques
are said to have been issued for sale consideration
under Ex.P.1 and D.1, it is seen that the same are dated
30.7.1984 and 10.8.1984 i.e., much earlier to the date
of execution of the sale deed on 20.8.1984. Besides, in
both the cheques it is seen that the same are having the
printed year relating ‘60; in other words, the same have
the printed format as date ………. 196.. and the dates
read as 19684 which also gives room for suspecting the
bonafides of both the drawer and the drawee. Be that
as it may. Nothing is mentioned in the sale deed about
the cheques and thus, the said dishonour of cheque
cannot be linked to the transaction dated 20.8.1984.
23. With regard to the preparing a draft of the
sale deeds as per Exs.P.2 and 3 and also the affidavits
thereon marked as Exs.P.4 and P.5, it is seen that
23
nothing is mentioned with regard to the nature of
Ex.P.1. In other words, it is seen that it is also like an
out and out sale deed. Thus, the sale also does not give
any continuity to the original sale deed besides
admittedly, Exs.P.2 to P.5 are not signed by the
defendant. Thus, the same also cannot bind the
defendant and the same also cannot renew the period of
limitation. Hence, the above suit is filed beyond the
period of limitation prescribed.
24. With regard to another substantial question
of law as to the applicability of the proviso to Section 34
of Specific Relief Act as discussed supra, admittedly it is
seen that under the document in question the property
is said to have been delivered to the purchaser besides
the defendant has also chosen to file certified copies of
mutation register extract, RTC extract, patta book etc.
which all discloses that the defendant was put in
possession under the said sale deed dated 20.8.1984.
24
The defendant has also filed tax paid receipts,
endorsement issued by the DCC Bank as Ex.D.34 which
discloses that it is a no-due certificate issued with
regard to the lands so purchased by him – Ex.P.1 and
Ex.D.1. Thus, it cannot be said that the defendant was
not put in possession of the property. Besides, on
perusal of the plaint it is also seen that it is not the case
of the plaintiff that the defendant was interfering with
his possession. On the other hand, he has sought the
consequential relief of injunction restraining the
defendant from alienating the schedule property.
25. In the foregoing circumstances, considering
the nature of prayer sought, the contents of the
documents which is under challenge under which the
property is alleged to have been delivered to the
purchaser and also the contents of the documents got
marked by the defendant disclosing his possession over
the property, the contention of the learned counsel for
25
the respondent that under proviso to Section 34 of the
Specific Relief Act, the suit should fail for not seeking
further relief of possession inasmuch as under the said
proviso, it is clear that no Court can make any such
declaration where the plaintiff will be able to seek title
omits to do so. Thus, the said suit is also hit by Section
34 of the Specific Relief Act.
26. With regard to the other substantial question
of law formulated by this Court at the time of admission
that, “Whether the contention of the appellants that the
sale deed that was set up by the defendant could be
called a nominal sale deed and if so, what are the
circumstances that are required to be established in
challenging the judgment impugned” is also answered
holding that the lower appellate court has discussed at
length with regard to the said aspects by appreciating
both oral and documentary evidence placed on record
and the same does not call for any interference. Hence,
the following:
26
ORDER
The above appeal is dismissed.
Sd/- JUDGE
Brn