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2013 DIGILAW 510 (KAR)

DURGAPPA v. CHINNAMMA

2013-04-15

H.BILLAPPA

body2013
JUDGMENT H. BILLAPPA, J.-This appeal by the plaintiffs is directed against the judgment and decree, dated 22/03/2003, passed by the I Additional Civil Judge (Sr. Dn.), Davanagere, in O.S. No. 43/1993 which has been confirmed by the District Judge, Davanagere, in R.A. No. 41/2003. 2. By the impugned judgment and decree passed in O.S. No. 43/1993, the Trial Court has dismissed the suit of the plaintiffs for declaration that the document dated 20/04/1963 is a sham document and not acted upon. The plaintiffs are the owners of the suit schedule property and for permanent injunction. The appellate Court by its judgment and decree dated 30/01/2006 has dismissed the appeal confirming the judgment and decree passed by the Trial Court. Therefore, this second appeal. 3. Briefly stated the facts are: The appellants/plaintiffs filed suit in O.S. No. 43/1993 for declaration that the document dated 20/04/1963 is a sham document. The plaintiffs are the owners of the suit schedule property and for permanent injunction. The case of the appellants-plaintiffs was that one Huchappa had two sons namely Sanna Halappa and Dodda Halappa. The first and sixth plaintiffs are the sons of Sanna Halappa and the plaintiffs 2 to 5 are the sons of Dodda Halappa. The suit schedule property was acquired by Sanna Halappa and Dodda Halappa in the year 1937-38. They were in possession and enjoyment of the suit schedule property. Dodda Halappa used to raise loan for agricultural purpose. Since the bank authorities threatened the parents of the plaintiffs, to have a sort of relief and to protect the suit schedule property, a nominal document was executed in favour of the first respondent though it was styled as sale deed. The document dated 20/04/1963 is a sham document and never acted upon. The plaintiffs parents continued to cultivate the land. Thereafter, the plaintiffs are in possession and enjoyment of the suit schedule property as owners. The defendants 1 to 3 interfered with the possession of the plaintiffs at the instigation of defendant No. 4. Therefore, the plaintiffs have prayed for declaration and permanent injunction. 4. Initially the defendants 1 and 4 have filed common written statement denying the plaint averments and contending that the plaintiffs were aware that the suit schedule property was purchased by defendant No. 4 from defendant No. 1 through registered sale deed in the month of May 1992. Therefore, the plaintiffs have prayed for declaration and permanent injunction. 4. Initially the defendants 1 and 4 have filed common written statement denying the plaint averments and contending that the plaintiffs were aware that the suit schedule property was purchased by defendant No. 4 from defendant No. 1 through registered sale deed in the month of May 1992. Defendant No. 4 has been in possession and enjoyment of the suit schedule property. The suit is barred by limitation and bad for nonjoinder of necessary parties. 5. Thereafter, the first defendant has filed a separate written statement denying the plaint averments and contending that during 1963 the plaintiffs fathers were in financial crisis and approached the 1st defendant to sell the suit schedule property. The first defendant's husband sold the property at Ganjigatte. Thereafter, the suit schedule property was purchased for valuable consideration and possession was taken. After the death of first defendant's husband, the plaintiffs started giving trouble and various revenue proceedings have been initiated. 6. The first defendant has not sold the suit schedule property in favour of the defendant No. 4. The document dated 20.4.1963 is an out and out sale. Possession was handed over to the first defendant. The suit is barred by limitation. The plaintiffs were never in possession and enjoyment of the suit schedule property. The suit is bad for non joinder of necessary parties. Therefore, the first defendant has prayed for dismissal of the suit. 7. The Trial Court considering the material on record has held that the plaintiffs have failed to prove that they are in possession and enjoyment of the suit schedule property. The defendants have proved that they are in possession and enjoyment of the property. It is also held that the document dated 20.4.1963is an out and out sale. The suit is barred by limitation and bad for non joinder of necessary parties. Therefore, the Trial Court has dismissed the suit. 8. In the appeal, the appellate Court has confirmed the judgment and decree passed by the Trial Court and dismissed the appeal. Therefore, this second appeal. 9. The learned counsel for the appellants contended that the impugned judgment and decrees cannot be sustained in law. He also submitted that the Courts below have failed to consider the evidence on record in proper perspective. Further he submitted that Ex.P9 was only a nominal document and not binding on the plaintiffs. Therefore, this second appeal. 9. The learned counsel for the appellants contended that the impugned judgment and decrees cannot be sustained in law. He also submitted that the Courts below have failed to consider the evidence on record in proper perspective. Further he submitted that Ex.P9 was only a nominal document and not binding on the plaintiffs. The plaintiffs are in possession and enjoyment of the suit schedule property. He also submitted that the plaintiffs came to know about Ex.P9 only in the year 1992 and the suit is filed immediately and therefore, the suit was not barred by limitation. He therefore submitted that the impugned judgment and decrees cannot be sustained in law. 10. As against this, the learned counsel for the respondents 1 to 3 submitted that the impugned judgment and decrees do not call for interference. He also submitted that the Courts below on proper consideration of the material on record have rightly held that Ex.P9 is an out and out sale for valuable consideration and the defendants are in possession and enjoyment of the suit schedule property and therefore, the impugned judgment and decrees do not call for interference. He also submitted that Ex.P9 is of the year 1963 and the suit is filed in the year 1993 and therefore, the suit was barred by limitation. Both the Courts have concurrently held that the suit was barred by limitation. In the revenue proceedings it is directed to enter the name of the 1st defendant in the revenue records. Therefore, he submitted that no substantial question of law arises for consideration in this appeal and therefore, the impugned judgment and decrees do not call for interference. 11. I have carefully considered the submissions made by the learned counsel for the parties. 12. The suit is for declaration that the sale deed dated 20.4.1963 is a sham document and not acted upon. The plaintiffs are the owners of the suit schedule property and for permanent injunction. The plaintiffs contend that the suit schedule property belonged to Sanna Halappa and Dodda Halappa. Thereafter, the plaintiffs are in possession and enjoyment of the suit schedule property. The document dated 20.4.1963 is a sham document and does not convey any right, title or interest in the suit schedule property. 13. The 1st defendant has contended that she purchased the suit schedule property through registered sale deed dated 20.4.1963. Thereafter, the plaintiffs are in possession and enjoyment of the suit schedule property. The document dated 20.4.1963 is a sham document and does not convey any right, title or interest in the suit schedule property. 13. The 1st defendant has contended that she purchased the suit schedule property through registered sale deed dated 20.4.1963. It was an out and out sale. The suit schedule property was purchased by selling the property of her husband at Ganjigatte. Possession was delivered. The 1st defendant is in possession and enjoyment of the suit schedule property. 14. The Courts below considering the material on record have concurrently held that the sale deed dated 20.4.1963, i.e., Ex.P9 is an out and out sale for valid consideration. The plaintiffs have failed to prove their possession. The plaintiffs have not produced any documents to prove their possession. In the revenue proceedings, it is directed to enter the name of the 1st defendant in the revenue records. The material on record shows that the property was sold in favour of the 1st defendant in the year 1963. The suit has been filed in the year 1993 after the lapse of nearly 30 years. Both the Courts have concurrently held that the suit is barred by limitation and bad for non-joinder of necessary parties. I do not find any error or illegality in the findings recorded by the Courts below. The findings are based on evidence and justified in law. No substantial question of law arises for consideration in this appeal. Therefore, the appeal is liable to be dismissed. Accordingly, the appeal is dismissed.