Chikkanarasaiah v. Anantharajappa & Ors.

(By SriS K Venkata Reddy, Adv.) And Anantharajappa – since dead by his LRs 1 2 Seshagiri Rao Nagaraj @ Nagesh Rao Appellants 2 Both are s/o late Anantharajappa and are r/a Devalapura, Kora Hobli Tumkur Taluk & District Respondents (By SriN Subbashastry, Adv.) Second Appeal is filed under S.100, Civil Procedure Code praying to set aside the judgment and decree dated 21.6.2007 inRA 59/2007 (Old No.36/2003) by the Fast Track Court V, Tumkur, etc. Second Appeal coming on for hearing this day, the Court delivered the following: JUDGMENT This is a defendant’s second appeal challenging the judgment and decree passed by the District Judge/Fast Track Court V, Tiptur in RA 59/2007 (Old No.36/2003) on 21.6.2007. Plaintiff Anantharajappa filed OS 328/1995 before the Civil Judge (Jr.Dvn.), Tumkur stating, property in Sy.No.16 of Devalapura Village, Kora Hobli, Tumkur measures 8.10 acres out of which 2.30 acres belonged to one Ramachandraiah and his son Somasundar Rao who had executed a power of attorney in favour of one Sumitra from whom he has purchased the said extend under a registered sale deed dated 30.4.1994. They appear 3 to have executed a sale deed to the extent of 1.15 acres in favour of the appellant/defendant herein on 8.4.1994 with respect to eastern portion of the said share of Ramachandraiah and his son. It transpires, Ramachandraiah alone has executed the sale deed in favour of the appellant/defendant and his son Somasundar Rao did not sign the sale deed in favour of the defendant as such, on the dispute, the District Registrar having resolved the dispute directed registration of the sale deed in favour of the defendant to the extent of 1.15 acres. Thereafter, there was also a writ petition filed before this Court against the order of the District Registrar and that writ petition came to be dismissed. Be that as it may, the suit filed by the plaintiff to the entire extent of 2.30 acres, came to be decreed by the Civil Judge (Jr.Dvn.), Tumkur against the defendant on the ground that the registration of the sale deed in favour of the plaintiff on

30.4.1994 (Ex.P3) is much prior to the presentation of the document by the defendant on 5.7.1994. The same has been challenged by the defendant before the Civil Judge (Sr.Dvn), Tumkur in appeal and ultimately, the matter came to be disposed of by the Fast Track Judge V, Tumkur in RA 59/2007 (old No.36/2003). The lower appellate court on the ground that the 4 execution of the sale deed in favour of the plaintiff is on 30.4.1994 as per Ex.P3 whereas the sale deed in favour of the defendant was presented on

5.7.1994, as such, while concurring with the finding of the trial court, confirmed the judgment of the trial court and dismissed the appeal of the defendant. As against the said order, this second appeal by the defendant. Heard the counsel representing the respective parties. On 29.7.2008, my learned predecessor has raised the following substantial questions of law for consideration. Whether in the facts and circumstances of the case, the courts below were justified in decreeing the suit of the plaintiff holding that Ex.D1 executed infavour of the defendant is not a valid document. It is the submission of the appellant’s counsel that the document is above Rs.100/- and it has to be registered compulsorily. One of the party to the sale deed failed to execute while the other one has executed. As per S.23 and 47 of the Registration Act and also as per the judgment of the Apex Court in the case of Hamida Ammal Vs Avadiappa Pathar & 3 ors - 5 (1991) 1 SCC 715, as is observed in para 4, has held as per S.47 of the Registration Act, 1908, document of registration relates back to the execution of the sale deed and as such, the sale deed executed prior to attachment can be registered. Learned counsel also submitted, as per S.23 of the Act, a document / sale deed shall be accepted for registration within four months from the date of its execution. of the sale deed which was presented for registration within four months. One of the parties to the sale deed has not come forward to sign the sale deed after receiving consideration, appeal has been preferred before the District Registrar who passed an order in favour of the defendant to execute the sale deed as such, after that he has presented it for registration. Accordingly, it is contended, as per S.47 of the Act, sale deed executed in favour of the defendant relates back to the date of execution of the sale deed i.e., 8.4.1994 which has to be taken into consideration and not on 5.7.1994. Per contra, respondent’s counsel submitted, the property in question to the entire extent has been sold and also the boundaries do not tally as such, the question would arise whether when the boundaries do not tally, it 6 is necessary that registration of the sale deed in favour of the plaintiff has to be treated as one in respect of the property which does not tally with the boundaries mentioned in Ex.D1 which is said to be executed in favour of the 1st defendant. In reply, it is the submission of the appellant’s counsel that in the first sale deed in favour of the defendant dated 8.4.1994, it is specifically mentioned that the eastern side of the property of the vendor Ramachandraiah and his son is being sold in favour of the defendant mentioning some boundaries. However, as per Ex.P3, the vendor (power of attorney holder) has sold in favour of the plaintiff the entire extent and the execution of the sale deed in favour of the plaintiff is subsequent to that of defendant. The property executed in favour of the defendant to an extent of

1.15 acres has to be excluded and the finding of the trial court as well as the lower appellate court is without looking into the provisions of S.23 and 47 of the Registration Act. Accordingly, he contended that the appeal has to be allowed. 7 It transpires, property in Sy.No.16 to the extent of 2.30 acres out of

8.10 acres at Devalapura Village is the subject matter which is not in dispute. On 8.4.1994 there is a sale deed executed by Ramachandraiah and his son Somasundar Rao failed to executed it. On that aspect, defendant has taken the matter in appeal before the District Registrar on failure of the Sub-Registrar to entertain the matter and ultimately, judgment has been rendered in favour of the defendant to the extent of 1.15 acres. Thus, the order of the District Registrar formed the basis in favour of the defendant and though that order has been challenged before this Court on the writ side, while confirming the order of the District Registrar ordering to register in favour of the defendant, the writ petition filed by the plaintiff or on his behalf by somebody else, has been dismissed. It appears, the sale deed executed in favour of this plaintiff by both Ramachandraiah and his son Somasundar Rao is registered on 30.4.1994. In between the two, under S.23 and 47 of the Registration Act, as per the judgment of the Apex Court in the case cited supra, the registration of the document relates back to the date of execution. The date of execution of the document in favour of the defendant is on 8.4.1994 which is first in point of time. The 8 subsequent document executed in favour of the plaintiff is on 30.4.1994. In that view of the matter, as per S.47 of the Act, the date of registration will relate back to the date of execution of the sale deed. Even S.23 contemplates that document shall be accepted for registration within four months from the date of its execution. Thus, there is gain say in the contention of the appellant/defendant’s counsel that the document executed in favour of the defendant has priority. As to boundary dispute is concerned, the eastern portion is mentioned in the schedule of Ex.D1 – sale deed executed in favour of the defendant and the remaining portion alone ought to have been executed in favour of the plaintiff. It appears, plaintiff has executed the document through the GPA holder based on the power of attorney, to the entire extent for which separate action could be initiated against the GPA holder who has executed the document without verifying the earlier sale deed. Be that as it may, so far as the execution of the document in favour of the defendant on 8.4.1994 is concerned, it has to be treated as first in 9 point of time and with regard to boundaries, there is no discrepancy as it is very much mentioned in the sale deed of 8.4.1994 i.e., the eastern portion of the property is being sold in favour of the defendant and the remaining extent, the GPA holder has executed the document in favour of the plaintiff on 30.4.1994. In other words, the western portion has to be retained by the plaintiff and eastern portion in Sy.No.16, to an extent of 1.15 acres be parted in favour of the defendant. Accordingly, while answering the substantial question of law raised, appeal is allowed. Order of both the courts below are set aside. Parties to bear their own costs. Sd/- Judge