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2004 DIGILAW 321 (KAR)

G. v. SRINIVASA IYER VS KHAISER JAHAN

2004-06-01

V.GOPALA GOWDA

body2004
V. GOPALA GOWDA, J. ( 1 ) THIS second appeal is filed by the defendant in O. S. No. 451 of 1993 on the file of Principal II Munsiff, Bangalore Rural District, being aggrieved by the judgment and decree dated 16-8-2003 in R. A. No. 24 of 1997 confirming judgment and decree dated 19-12-1996 passed by the Trial court in the suit. ( 2 ) FOR the sake of convenience, the rank of the parties is referred to as in the original suit. ( 3 ) THE plaintiff filed the suit for permanent injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the suit schedule property or alienating the same to third party. The plaintiff claimed that he purchased the property from one Rahimabi under a registered sale deed dated 23-7-1992 and has been in possession of the same. It is alleged that the defendant got his name entered in the revenue records and based on those entries the defendant is trying to sell away the property. The defendant filed written statement denying the plaint averments and seeking dismissal of the suit. She claims to have purchased the property in the year 1971 and is in possession of the land. ( 4 ) DURING the pendency of the suit, the plaintiff sought additional prayer for declaration of title, for which the defendant filed additional written statement. On the basis of the pleadings, issues were framed and the suit went for trial parties adduced evidence and produced documents in support of their respective case. Upon consideration of the material brought on record, the Trial court accepted the case of the plaintiff and decreed the suit with costs. In the appeal preferred, the said judgment and decree of the Trial Court were affirmed by the first Appellate Court and the appeal was dismissed. Aggrieved by the same the present second appeal is filed. ( 5 ) THE Trial Court considered together Issue No. 1 relating to lawful possession additional, issue relating to the ownership of the plaintiff in respect of the suit schedule property. It was found that both plaintiff and the defendant claimed ownership to the property from the same vendor. The defendant claimed ownership under the sale deed dated 5-8-1971 whereas the plaintiff claimed ownership by virtue of the sale deed dated 23-7-1992. The vendor is the same for both the sale deeds. It was found that both plaintiff and the defendant claimed ownership to the property from the same vendor. The defendant claimed ownership under the sale deed dated 5-8-1971 whereas the plaintiff claimed ownership by virtue of the sale deed dated 23-7-1992. The vendor is the same for both the sale deeds. According to the defendant, the sale deed of the plaintiff is not genuine as the vendor Rahimabi died on 6-10-1985, itself and question of her executing the sale deed in the year 1992 does not arise. To disprove the death of the vendor and to show that she was alive as on the date of execution of the sale deed, the plaintiff produced Ex. P. 17-Ration Card, Ex. P. 18-Voters List for the year 1993, Ex. P. 19 the application form for grant of LIC. P. W. 4 had spoken that Rahimabi was alive as on the date of issuing Ex. P. 19 which is dated 8-2-1994. In addition to the same, the plaintiff also relied upon Ex. P. 6 the Affidavit of Rahimabi sworn to before the Chief Metropolitan Magistrate on 10-5-1993. P. W. 5 has identified the LTM of rahimabi on the sale deed executed by her in favour of the plaintiff. He categorically stated the sale of property by her to the plaintiff. In addition to these, P. W. 4 has stated that his mother sold the property to the plaintiff. Considering both documentary and oral evidence on record, the trial Court answered Issue No. 1 relating to the ownership of the plaintiff in respect of the suit schedule property and lawful possession of the same in favour of the plaintiff. ( 6 ) THE defendant relied upon the Death Certificate Ex. D. 15 to show that Rahimabi died on 6-10-1985 itself. Plaintiff states that it is a concocted document. The Trial Court considered this and found that the death was registered on 15-11-1985. The Trial Court found that since there was delayed information regarding the death, as per Section 13 of the Registration of Births and deaths Act, 1969, affidavit should have been filed explaining the delay. Defendant has not produced such affidavit. Per contra, the Affidavit at Ex. P. 6 sworn to by Rahimabi on 10-5-1993 falsifies her death on 6-10-1985. In view of Ex. P. 6, Ex. D. 15 is a false and concocted document. It is pertinent to note that Ex. Defendant has not produced such affidavit. Per contra, the Affidavit at Ex. P. 6 sworn to by Rahimabi on 10-5-1993 falsifies her death on 6-10-1985. In view of Ex. P. 6, Ex. D. 15 is a false and concocted document. It is pertinent to note that Ex. P. 6 is supported by the evidence of the witnesses and the documents Ex. P. 18 wherein her name is included as a tourist for LTC. On a combined effect of Exs. P. 2, P. 13, P. 18, P. 19 and P. 6, the Trial Court categorically held that Rahimabi was alive as on the date of execution of sale deed in favour of the plaintiff. Consequently, it disbelieved the story of the defendant. ( 7 ) SO far as the title to the schedule property is concerned, both the parties claimed ownership under separate sale deeds from the same vendor. While the plaintiff claims title by virtue of sale deed dated 23-7-1992, defendant claims ownership under the sale deed dated 5-8-1971, which is seriously disputed by the plaintiff. The sale deed executed in favour of the plaintiff is proved by examining the son of the vendor, the scribe and witnesses to the sale deed. Insofar as the sale deed of the defendant is concerned, the Trial Court considered the title of Rahimabi to execute sale deed in his favour. The defendant had filed application and Affidavit on 2-3-1999 for grant of the same land. The same are produced as Exs. P. 9 and P. 10. If the defendant had purchased the land, there was no occasion or necessity for filing such application for grant of land. ( 8 ) THE Trial Court elaborately considered the title of Rahimabi and found that she was granted the land on 2-4-1970 with a condition that it shall not be sold for a period of 15 years. Prima facie, she ought not to have sold the land before the expiry of the non-alienation period. Therefore, the sale deed executed by her in favour of the defendant in less than two years of grant was bad in law and contrary to the provisions of Land Grant Rules, The sale deed was void ab initio as Rahimabi had no valid title to pass on to the defendant. In other words, the title claimed by the defendant under the sale deed executed by Rahimabi is null and void. In other words, the title claimed by the defendant under the sale deed executed by Rahimabi is null and void. Therefore, the defendant did not derive valid title to the property. ( 9 ) SO far as the title of the plaintiff is concerned, the grant of the land in favour of Rahimabi on 2-4-1970 is after the expiry of the non-alienation period stipulated in the Grant Certificate. So far as possession is concerned, on the basis of the applications filed by the parties, proceedings were initiated and the Tahsildar passed order as per Ex. P. 16 holding that plaintiff is in lawful possession and enjoyment of the suit schedule property. On the basis of the said order, RTC entries which stood in the name of Rahimabi from 1973-74 to 1991-92 have been changed in favour of the plaintiff after the purchase of the land. The order passed by the Tahsildar as per Ex. P. 16 holding that plaintiff is in possession of the land, is not challenged by the defendant. That apart, if the defendant had acquired title to the land by virtue of the sale deed in his favour, he could have got his name entered in the RTC. The defendant has not chosen to do so. Considering all these aspects, the Trial Court answered the issues framed in the suit in favour of the plaintiff and against the defendant. Consequently, it has rightly decreed the suit. ( 10 ) THE first Appellate Court also re-appreciated the entire documentary and oral evidence adduced and affirmed the findings of the Trial Court. The concurrent findings recorded by the courts below does not warrant interference in this second appeal. The judgments and decrees of the Courts below are perfectly justified. The substantial questions of law framed in the memorandum of appeal does not arise and the appeal is devoid of merit. ( 11 ) THE appeal stands dismissed.