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2025 DIGILAW 264 (KAR)

Naseebabi W/o Late Ahamadullah Khan v. Revanna S/o Kotrappa

2025-06-06

ASHOK S.KINAGI

body2025
JUDGMENT : ASHOK S. KINAGI, J. 1. These three Regular Second Appeals arise out of judgments dated 09.10.2014 passed in R.A.Nos.21/2013 and 19/2013 by the learned Senior Civil Judge and JMFC, Harapanahalli and the judgment and decree dated 15.02.2013 passed in O.S.No.24/1999 by the learned Civil Judge and JMFC, Harapanahalli. 2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellants in RSA No.1759/2014 was the plaintiff and the respondents were the defendants. 3. Brief facts leading rise to the filing of these appeals are as follows: (i) The plaintiff filed the suit against the defendants for declaration of title and perpetual injunction. It is the case of the plaintiff that the husband of the plaintiff had purchased the suit schedule property from his vendor - Uttangi Kotrappa under an unregistered sale deed dated 07.04.1971. From the date of purchase, the plaintiff’s husband was in possession and enjoyment of the suit schedule property. After the demise of her husband, the plaintiff succeeded to the suit schedule property and came in possession of the suit schedule property. (ii) It is contended that the plaintiff is paying the land revenue of the suit schedule property. The plaintiff perfected her title through adverse possession. It is contended that the plaintiff lodged a complaint at Itagi police station and a criminal case was registered against the defendants in C.C.No.202/1998. It is contended that the defendants attempted to forcibly evict the plaintiff from the suit schedule property. Hence, a cause of action arose for the plaintiff to file a suit for declaration of title and perpetual injunction. Accordingly, prays to decree the suit. 4. The defendants filed a written statement denying the averments made in the plaint and contended that the suit schedule property is an ancestral property of the defendants. The defendants are the absolute owners of the suit schedule property. The defendants are in exclusive possession and enjoyment of suit schedule property. It is contended that the defendants are paying the land revenue to the Government and the revenue records stand in the name of the defendants. It is contended that Tahasildar, Harapanahhali passed an order to change the Khatha in the name of the defendants. The plaintiff has not challenged the order passed by the Tahasildar, Harapanahalli and it is contended that the plaintiff is not in possession of the suit schedule property. It is contended that Tahasildar, Harapanahhali passed an order to change the Khatha in the name of the defendants. The plaintiff has not challenged the order passed by the Tahasildar, Harapanahalli and it is contended that the plaintiff is not in possession of the suit schedule property. Hence, prays to dismiss the suit. 5. The Trial Court based on the pleadings of the parties framed the relevant issues. 6. The plaintiff to substantiate her case, examined her GPA holder as PW.1, examined four witnesses as PWs.2 to 5 and marked 07 documents as Exs.P1 to P7. In rebuttal, defendant No.2 examined himself as DW.1, examined three witnesses as DW.2 to DW.4 and marked 25 documents as Exs.D1 to D25. The Trial Court after recording the evidence, hearing both sides and on assessing the verbal and documentary evidence, answered issue No.1 in the negative, issue Nos.2 and 3 in the affirmative and issue No.4 partly affirmative and issue No.5 as per the final order. 7. The suit of the plaintiff was partly decreed, the relief of declaration of her title was dismissed and the relief of perpetual injunction was granted vide judgment dated 15.02.2013. The plaintiff aggrieved by the dismissal of suit for declaration of her title preferred an appeal in R.A.No.21/2013. The defendants also being aggrieved by the judgment and decree granting perpetual injunction, preferred an appeal in R.A.No.19/2023. The First Appellate Court on reassessing the verbal and documentary evidence dismissed both the appeals i.e., R.A.Nos.21/2013 and 19/2013 vide separate judgments dated 09.10.2014. The plaintiff and defendant Nos.1, 2 and 3(a) to (d) being aggrieved by the impugned judgments filed these appeals. 8. Heard Sri. Vigneshwar S. Shastry, learned Senior Counsel for the plaintiff and also learned counsel for defendant Nos.1, 2 and 3(a) to (d). 9. Learned senior counsel for the plaintiff submits that the plaintiff's husband became the absolute owner of suit schedule property by an unregistered sale deed executed by Uttangi Kotrappa and after the death of her husband, the plaintiff has been in continuous possession of suit schedule property for more than 12 years without interruption, obstruction and perfected the title by way of adverse possession. He also submits that the Courts below ought to have decreed the suit for declaration of title, on the contrary dismissed the suit for declaration of title though the plaintiff has produced the unregistered sale deed, followed by the revenue entries. Hence, the Courts below have committed an error in passing the impugned judgments. Hence, on these grounds, he prays to allow the appeal filed by the plaintiff and prays to dismiss the appeals filed by the defendants. 10. Per contra, learned counsel for the defendants submits that the plaintiff is not the owner in possession of the suit schedule property. He submits that the plaintiff is not in possession of the suit schedule property in any capacity, at any point in time and he submits that the plaintiff created the revenue records and filed the present suit on false and baseless grounds. He submits that the Trial Court committed an error in granting perpetual injunction. Hence, the Courts below have committed an error in granting the relief of perpetual injunction. Hence, on these grounds, he prays to allow the appeals filed by the defendants and prays to dismiss the appeal filed by the plaintiff. 11. Perused the records and considered the submissions of learned counsel for the parties. 12. It is the case of the plaintiff that her husband became the absolute owner of suit schedule property by way of an unregistered sale deed marked as Ex.P7. The Ex.P7 was marked for collateral purpose. 13. The sale is a transfer of ownership in exchange for a price paid or promised. Such a transfer can be made only by a registered instrument. Admittedly, the document produced by the plaintiff is an unregistered sale deed. As per Section 17 of the Registration Act, 1908 the said document is required to be compulsorily registered. Admittedly, the said document is unregistered, the plaintiff has not acquired any title by way of an unregistered sale deed. Further Section 54 of the Transfer of Property Act, 1882, reads as under: "A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties and it does not, of itself, create any interest in or charge on such a property." 14. Thus, the plaintiff has not acquired any interest in the suit schedule property by Ex.P7 i.e., an unregistered sale deed. Thus, the plaintiff has not acquired any interest in the suit schedule property by Ex.P7 i.e., an unregistered sale deed. Though, it is the case of the plaintiff that by virtue of an unregistered sale deed, the possession was delivered to her husband. However, both the Courts below considering the revenue entries in the name of the plaintiff held that the plaintiff is in possession of the suit schedule property. Both the Courts below have concurrently recorded a finding of fact against the plaintiff and defendants. The suit filed by the plaintiff for declaration of title is not maintainable and the Trial Court was justified in dismissing the suit for declaration of title and rightly decreed the suit for perpetual injunction. The First Appellate Court on reassessing the verbal and documentary evidence, has rightly affirmed the judgment passed by the Trial Court . Hence, I do not find any error in the impugned judgments or any substantial questions of law that arises for consideration in these appeals. 15. Accordingly, I proceed to passed the following: ORDER : (i) The appeals are dismissed. (ii) The judgment and decree passed by the Trial Court and confirmed by the Appellate Court are hereby confirmed. (iii) No order as to the costs. (iv) In view of dismissal of main appeals, I.A.No.3/2015 filed in RSA Nos.115/2015 and 116/2015 do not survive for consideration and accordingly, disposed of.