The High Court
Case Details
- 1 - NC: 2025:KHC:20560 RSA No. 1786 of 2024 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO. 1786 OF 2024 BETWEEN: 1. SMT. B.P.VYSHALI W/O SRI. CHANDRASHEKHAR AGED ABOUT 46 YEARS R/AT NEAR TEMPLE KANCHIBAGILUK, OLD TOWN BHADRAVATHI TLAUK-577 301. (BY SRI. VENKATESHA T.S., ADVOCATE) AND: …APPELLANT Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA 1. SMT. FIJA KHANAM D/O JAMEER AHMEDKHAN W/O MOHAMMED SHAHID PASHA AGED ABOUT 40 YEARS RESIDING AT OLD TOWN BHADRAVATHI-577 301. 2. SRI. SUBBA RAO S/O LATE SHANKAR RAO AGED ABOUT 51 YEARS RESIDING AT KALIDAS NAGARA EXTENSION SUDDRUDHANGAR 2ND CROSS, 1ST FLOOR BHADRAVATHI-577 301.
Legal Reasoning
Having considered the question of fact and question of law was considered by both the Courts with regard to the registration of sale deed in favour of the plaintiff vide sale deed dated 08.10.2003, subsequent sale deed dated 27.10.2010 does not convey any title in favour of the defendant No.2. When such being the case, no substantial question of law arises for consideration to be framed by this Court. The other contention that the appellant is a bonafide purchaser also cannot be accepted and the very sale deed was already in existence in favour of the plaintiff, that too of the sale deed of - 10 - NC: 2025:KHC:20560 RSA No. 1786 of 2024 HC-KAR the year 2003 and his subsequent sale deed is of the year 2010 and the contention of bonafide purchaser also cannot be accepted, since already there was a sale deed and he ought to have verified the documents before purchasing the property subsequently and that has not been done. When such being the case, the contention that he is a bondafide purchaser also cannot be accepted. 9. In view of the discussion made above, I pass the following:
Arguments
(BY SRI. KARTHIK S. TAYUR, ADVOCATE FOR C/R1) …RESPONDENTS - 2 - NC: 2025:KHC:20560 RSA No. 1786 of 2024 HC-KAR THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 01.10.2024 PASSED IN R.A.NO.86/2023 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, BHADRAVATHI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 05.04.2023 PASSED IN O.S.NO.452/2012 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC, BHADRAVATHI. THIS APPEAL COMING ON FOR ORDERS THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT This matter is listed for consideration of I.A.Nos.2/2024 and 3/2024 and I have heard learned counsel for the appellants and learned counsel for the caveator-respondent. 2. This appeal is filed against the concurrent finding of the Trial Court and the First Appellate Court. The suit is filed by the plaintiff seeking the relief of declaration and possession and the very claim of the plaintiff is that she is the absolute owner of the property by virtue of the sale deed dated 08.10.2003 executed by the defendant No.1. But the defendant No.1 appeared and took the defence that sale deed dated 08.10.2003 executed was a nominal deed of sale and not acted upon the same. The plaintiff took the contention that sale deed executed by defendant No.1 in favour of defendant No.2 is null - 3 - NC: 2025:KHC:20560 RSA No. 1786 of 2024 HC-KAR and void and not binding on her and sought for declaration and possession and additional issue was also raised, in view of defence taken by the defendant No.2, who is the appellant herein, wherein he took the contention that sale deed of the plaintiff is illegal, not acted upon and not binding on him and suit is also barred by limitation. 3. The Trial Court also considered the evidence led before the Trial Court in proving the case of the plaintiff i.e., P.Ws.1 and 2 and also Exs.P1 to P21 and evidence on behalf of the defendants as D.W.1 and documents of Exs.D1 to D16. The Trial Court having considered the material on record comes to the conclusion that already there was a sale deed in favour of the plaintiff in the year 2003 itself and though defendant No.1 took the defence that it was not acted upon and defendant No.1 did not contest the matter, but the subsequent purchaser, who has been arrayed as defendant No.2 led the evidence. The Trial Court taking note of the material available on record, comes to the conclusion that already there was a sale deed in favour of the plaintiff and question of executing the sale deed in favour of defendant No.2 by defendant No.1 does not arise, - 4 - NC: 2025:KHC:20560 RSA No. 1786 of 2024 HC-KAR since defendant No.1 was not having any title to execute the sale deed in favour of defendant No.2. Hence, answered the issues in favour of the plaintiff and additional issue No.2 was answered as ‘negative’, since the very appellant took the very defence that it was not acted upon. 4. Being aggrieved by the said judgment and decree of the Trial Court granting the relief in favour of the plaintiff, an appeal is filed before the First Appellate Court in R.A.No.86/2023. The First Appellate Court also having considered the grounds urged in the appeal memo and also both oral and documentary evidence placed on record, formulated the point whether the judgment and decree of the Trial Court requires interference of this Court and suffers from its legality. On re-appreciation of both oral and documentary evidence placed on record, the First Appellate Court comes to the conclusion that when already there was a sale deed in favaour of the plaintiff, also extracted the evidence available on record and even extracted Sections 91 and 92 of the Evidence Act and comes to the conclusion that oral evidence cannot be relied upon when there is a documentary evidence available on - 5 - NC: 2025:KHC:20560 RSA No. 1786 of 2024 HC-KAR record and documentary evidence excludes oral evidence of defendant No.2. The First Appellate Court also taken note of contention of the appellant herein that under Ex.P1, there is no passing of consideration and delivery of possession and the First Appellate Court considered that the same is against the recitals in Ex.P1 which is a registered document and has presumptive value as to the correctness of the contents of the same. Hence, the very contention of defendant No.2 cannot be accepted. The First Appellate Court also taken note of the fact that even though when the defendant No.2 comes to know about the sale made in favour of the plaintiff, the same is not questioned and also taken note of the contention that there was a compromise in O.S.No.27/2011 filed by the sisters of defendant No.1, wherein sisters of defendant No.1 have got ratified the sale of suit schedule property by defendant No.1 in favour of defendant No.2. This aspect was also taken note of and also taken note of the fact that question of ratifying the same does not arise, when already there was a sale in favour of the plaintiff, that too, by executing the document in the year 2003 itself. - 6 - NC: 2025:KHC:20560 RSA No. 1786 of 2024 HC-KAR 5. Having taken note of the said fact into consideration and also considering the admission on the part of P.W.1, granted the relief of declaration and possession, since there was already a sale deed and question of flow of title in favour of the defendant No.2 in the subsequent sale deed does not arise and confirmed the judgment of the Trial Court. Being aggrieved by the judgment of both the Courts and there is a concurrent finding, the Trial Court also taken note of material on record. Learned counsel for the appellant would vehemently contend that both the Courts have committed an error in decreeing the suit and confirming the same believing the sale deed of 08.02.2013 and did not consider the subsequent sale deed of the year 2010. Learned counsel for the appellant would vehemently contend that earlier sale deed dated 08.10.2003 is against the public policy and both the Courts ought not to have granted the decree. The very reasoning given by both the Courts that second transfer in favour of defendant No.2 is not sustainable. Hence, this Court has to admit the appeal and frame substantial question of law. - 7 - NC: 2025:KHC:20560 RSA No. 1786 of 2024 HC-KAR 6. Per contra, learned counsel for the caveator- respondent Nos.1 and 2 in his argument would vehemently contend that both the Courts have taken note of earlier sale deed of the year 2003 and question of executing one more sale deed by defendant No.1 when he himself had the knowledge of sale of property in favour of plaintiff and question of once again executing the sale deed in favour of the defendant No.2 does not arise. The Trial Court also taken note of other material available on record and not committed any error and question of flowing of title in favour of defendant No.2 does not arise, in view of already there was a sale deed of the year 2003. When such being the case, question of framing any substantial question of law does not arise. 7. Having heard learned counsel for the appellant and learned counsel for caveator-respondent Nos.1 and 2 and having considered the material on record, it is not in dispute that there was a sale deed in the year 2003 in favour of the plaintiff and only contention was taken by the defendant No.1 that sale deed was not acted upon, but not placed any material before the Court. The contention of defendant No.2 is also that - 8 - NC: 2025:KHC:20560 RSA No. 1786 of 2024 HC-KAR said sale deed was not acted upon and the said sale deed was illegal and in order to come to such a conclusion, no material is placed on record and also earlier sale deed in favour of plaintiff was not challenged, except contending that sale deed was not legal. When such contention was taken and once the sale deed was in existence and Trial Court taken note of material available on record, question of selling the very same property which was already sold in favour of the plaintiff in 2003 does not arise. Even the First Appellate Court also taken note of though such defence was taken, discussed in detail invoking Sections 91 and 92 of the Evidence Act and comes to the conclusion that documentary evidence excludes the oral evidence of defendant No.2. When documentary evidence is clear that sale was made in favour of the plaintiff in the year 2003 itself, the question of executing one more sale deed in favour of defendant No.2 by the very same vendor i.e., defendant No.1 does not arise and title will not flow in favour of the defendant No.2. Hence, remedy to defendant No.2 is other than seeking the relief of declaration and possession and in the absence of questioning the earlier sale deed executed in favour of plaintiff No.3, question of granting any relief as contended by - 9 - NC: 2025:KHC:20560 RSA No. 1786 of 2024 HC-KAR the defendants does not arise and only defence taken that earlier sale deed is not acted upon and the same is illegal and the sale consideration was also mentioned in the document and recitals of the document of sale deed executed in favour of the plaintiff was also taken note of in terms of Ex.P1 and also even considered the document of Ex.P2 registered in favour of defendant No.2 and having considered the material on record, the very contention of defendant No.2, who is the appellant herein that both the Courts have committed an error cannot be accepted. 8.
Decision
ORDER The regular second appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE ST List No.: 1 Sl No.: 38