Bhagirathavva v. Gavadappa Rudrappa Sopina

JUDGMENT

1. Concurrent findings are called in question before this Court u/S 100 CPC by filing the appeal. Plaintiffs of O.S No. 50/2001 which was pending on the file of Court of Prl. Civil Judge (Sr. Dn.), Bailhongal are before this Court. Respondents are the defendants in the said suit. Parties will be referred to as plaintiffs and defendants as per their ranking given in the trial Court.

2. Third plaintiff-Udachappa died during the pendency of the suit. Suit was filed for the relief of declaration to the effect that the sale deed executed by the first plaintiff Smt. Bhagaratevva and deceased Udachappa on 29.01.1980 in favour of defendant No. 1-Gavadappa is null and void and that it is the outcome of fraud played on the executors. Further relief of declaration is sought that it is null and void on the ground that the deed has not been registered in accordance with the mandatory provisions of Registration Act and the rules framed therein. Plaintiffs are stated to be in lawful possession and enjoyment of the property and that possession has never been Parted in favour of defendants. Since plaintiffs came to knowledge of the alleged sale deed in the year 2001 they had to file suit for the relief of declaration and permanent injunction. According to the plaintiffs, first defendant is residing in a house opposite to the house of plaintiff and that plaintiff No. 1 was vending milk to the house of the first defendant. In this regard both of them very cordial and taking advantage of the cordiality, the first plaintiff approached the first defendant to get the name of her another deceased son be deleted from the CTS records. In this regard she approached the first defendant to do the needful. It is her case that first defendant took her signature and the signature of her son, deceased third plaintiff-Udachappa on some records assuring them that the name of her another deceased son would be deleted. She had implicit faith in the defendants and therefore she subscribed signature along with her deceased son. Later in the year 2001 she came to know that the signatures obtained from them are to create document as a registered deed and thereby cause prejudice to them.

3. Defendants have filed detailed written statement denying all the material averments. According to them, the deed dated 29.01.1980 is an absolute sale deed registered in accordance with the provisions of Registration Act and it was registered by the plaintiff No. 1 and her deceased son on receiving a sum of Rs. 1,500/- as consideration and that she was personally present to admit execution of the sale deed and that Khatha is stated to have been changed into his name on the basis of the sale deed and the CTS entries have been incorporated in his name on the basis of the sale deed. Defendants have denied all the material averments found in the plaint and have called upon the plaintiffs to prove contents of the plaint strictly. With these pleadings defendants had requested the Court to dismiss the suit.

4. On the basis of the above pleadings following issues are framed:

1. Do the plaintiffs prove that they are the absolute owners of the suit property?

2. Do the plaintiffs prove that the sale deed dated 29.01.1980 in respect of suit property is null and void?

3. Do the plaintiffs prove that they are in lawful possession and enjoyment of the suit property as on the date of suit?

4. Do the plaintiffs prove that there is interference by the defendant to their lawful possession and enjoyment of suit property?

5. Do the plaintiffs prove that they have got cause of action to file present suit against the defendants?

6. Do the plaintiffs prove that they are entitled for relief of declaratory and perpetual injunction against the defendants in respect of suit property?

7. Whether the court fee paid by the plaintiffs is correct or not?

8. What order?

Addl. Issue No. 1.

Whether the defendant No. 1 proves that the suit filed by the plaintiffs is barred by limitation.

Issues framed:

Whether plaintiffs prove that they have perfected their title over the suit property by way of adverse possession?

5. First plaintiff is examined as P.W.4 and in all 4 witnesses have been examined on behalf of the plaintiffs apart from getting 35 exhibits marked on their behalf. First defendant is examined as D.W.1 and Mallappa is examined as D.W.2 Six exhibits have been marked on behalf of the defendants. Ultimately, learned Senior Civil Judge has chosen to answer issues 1 to 6th in the negative and issue No. 7 and additional issue No. 1 in the affirmative and recasted issue in the negative. Ultimately, suit has been dismissed by a considered judgment and decree dated 06.07.2007 Against the said judgment and decree an appeal was filed u/S 96 of CPC before the 6 Addl. District Judge, Belgaum in R.A No. 73/2007 u/S 96 of CPC. Said appeal has also been dismissed after contest. Hence the concurrent findings are called in question.

6. Learned counsel for the appellants has submitted his arguments at length in regard to admission. It is argued that blanks and interlineations found in the registered deed are not certified by the Sub Registrar and therefore the deed is no registered deed in the eye of law under which title could be transferred to the first defendant. It is further argued that the first defendant is an illiterate lady and the contents of the documents have not been read over by the Sub Registrar. It is further argued that a person who did not have valid license as a Scribe, has chosen to draft the sale deed and therefore the sale deed is no sale deed in the eye of law. It is further argued that the sale deed is the outcome of fraud played on the first plaintiff and her deceased son and therefore it does not bind them more Particularly when her other children were very much alive. It is further argued that limitation will have to be reckoned from the date on which plaintiffs came to know of the alleged sale deed and therefore the suit is not barred by time. He has relied upon the decision reported in ILR 1988 KAR 1185 (KENCHAWWA v. AMAGONDA). Perused the judgment of both the Courts.

7. What is argued before the Court is that the document containing interlineations, blanks, erasures or alterations must be certified by the Sub Registrar at the time of presentation of the same. In this regard Sec. 20 of the Registration Act, 1901 is relied upon by the learned counsel for the appellants herein. Sec. 20 of the Registration Act is as follows:

20. Documents containing interlineations, blanks, erasures or alterations.- (1) The registering officer may in his discretion refuse to accept for registration any document in which any interlineation, blank, erasure or alteration appears, unless the persons executing the document attest with their signatures or initials such interlineation, blank, erasure or alteration. (2) If the registering officer registers any such document, he shall, at the time of registering the same, make a note in the register of such interlineation, blank, erasure or alteration.

8. On a plain reading of Sec. 20 of the Registration Act, 1908, it is evident that the registering Officer has the discretion to refuse to accept for registration any document in which any interlineation, blank, erasure or alteration appears unless persons executing the document attest with their signatures or initials. But in the case of Kenche Gowda v. Venkatarama Shetty (ILR 1960 MYSORE 839) this Court has held that Civil Court has no jurisdiction to interfere with the discretion of the Sub Registrar. Therefore, even if the interlineation or blank or erasure are not certified by the Sub Registrar, non exercising such discretion cannot be called in question before this Court and therefore the sale deed cannot be held as null and void on this count.

9. What is argued before this Court is that the Registering Officer could have been examined before the trial Court when the authenticity of the registered document is questioned. This Court is unable to accept the said contention on the ground that the registration of a document acts as a public notice. The presumption is that the Registering Officer has complied with all the mandatory provisions of the Registration Act.

10. Learned counsel for the appellants has argued that the first plaintiff is an illiterate lady and nothing is placed on record to show that the Registering officer read over the contents of the document and the contents were explained to her. Whether P.W.1 has asserted that the contents of the documents were not at all read over to her and that they were not explained to her. Even otherwise, she had been accompanied by her son Udachappa, deceased third plaintiff and the document had been jointly executed by her and her son. Therefore, the said argument does not stand to any reasoning.

11. What is further argued is that the person who has written the deed in question did not have valid license to write the document. Sec. 80-B of the Registration Act is relied upon to contend that any person other than an Advocate or other legal practitioner, shall for payment, write deeds unless he holds a license granted in accordance with rules made under Section 69. Nothing is placed on record to show that the person who wrote the deed did not have valid license. Even otherwise, if a person other than the Registered Deed Writer was the scribe of the document in question, sale deed cannot be termed as illegal or null or void. Even if the Registering Officer has committed a mistake in allowing a person other than the licenceholder to write document, the Party who has obtained the sale deed cannot be penalized.

12. The main allegation against the defendant No. 1 is that the sale deed has been obtained by playing fraud on the plaintiff and her deceased son. Plea of fraud is a serious allegation and necessary Particulars are to be mentioned. Whenever fraud is pleaded, plaintiff himself has to set forth Particulars of fraud. Use of words “fraud” or “delicit”, however strongly worded are insufficient and does not amount to an averment of fraud of which any Court ought to take notice. The degree of proof required in cases where allegations of fraud is made, such degree of proof is required which is higher than the preponderance of probabilities. It is further held that the degree of proof that is required to prove such allegation is almost akin to the proof beyond reasonable doubt as insisted in criminal cases. In the case of Sangram Singh AIR 2005 SC 809, the Hon'ble Supreme Court has held that in cases where allegation of mismanagement or fraud is played, it must be specifically pleaded and proved. In the present case requisite Particulars are not forthcoming in regard to the allegation of fraud and the evidence placed on record is not adequate enough to substantiate the special plea of fraud or misrepresentation.

13. What is argued before this Court is that plaintiff or her son has not at all received any consideration as mentioned in the sale deed. There is a specific endorsement of Sub-Registrar in the sale deed about the consideration being paid to the venders. In the light of such endorsement, the evidence adduced in regard to the non passing of consideration is quite feeble and therefore the trial Court has not taken cognizance of the same.

14. Even otherwise, suit came to be filed almost 21 years after the deed was registered as per the provisions of Indian Registration Act. What is argued before this Court is that Article 58 of the Limitation Act provides for filing of a suit within 3 years from the date of knowledge and therefore suit is stated to be in time. According to the plaintiff, they came to know of the fraud played on them only in the year 2001. But both the Courts have specifically held that the evidence in regard to knowledge of the same is quite insufficient and therefore the trial Court has held that the suit is barred by time and the same has been affirmed by the first appellate Court on reassessment of the evidence.

15. Learned counsel for the appellant has relied upon a decision rendered in Kenchavva's case rendered by a Division Bench of this Court reported in ILR 1988 KAR 1185. As per the facts in Kenchavva's case the mortgage deed dated 11.04.1966 had been executed for a consideration of Rs. 600/- and the mortgage was redeemed on 02.05.1968 and thus possession had been taken back after redemption. After taking possession, plaintiff was in enjoyment of the suit property till the year 1972. Defendant No. 1 therein brought Police force to the suit land and began threatening her stating that she should vacate the hut that she had put up for residential purpose. Then only she came to know that her husband had sold the property under the sale deed dated 04.10.1969 Immediately she made necessary enquiry in the concerned office and came to know that the defendant had managed to get the sale deed executed by defendant No. 2, i.e, her husband, and also to get her signature by playing fraud. Suit came to be filed in the year 1973 vide O.S No. 251/1973. As per the facts of the said case suit was filed within 3 years from the date of the sale deed and therefore the Particulars in regard to the fraud played on her and the misrepresentation had been specifically mentioned and the evidence let in was convincing. As per the facts of the said case, the Sub Registrar had not complied with the mandatory requirement of Sec. 59(c) of the Registration Act. Taking into consideration that the plaintiff had approached the Court well in time and taking into consideration the evidence adduced in regard to the fraud and misrepresentation was convincing, this Court on reappreciation of the evidence allowed the appeal.

16. In the present case, plaintiffs have chosen to approach the Court almost 21 years after the execution of the deed. The name of the defendant No. 1 came to be entered in all Municipal Records and CTS records based on the sale deed few months after the sale deed was executed. Taking into consideration the totality of the case, the trial Court has come to the conclusion that the plaintiffs have failed to discharge the initial burden cast upon them more Particularly in the light of fraud and misrepresentation being pleaded. The first appellate Court, being the final Court of facts, has reassessed the entire evidence in right perspective and has assigned cogent reasons in order to concur with the judgment.

17. Suffice to state that both the Courts have adopted right approach to the real state of affairs and have tested the evidence on the touchstone of intrinsic probabilities. The questions of law proposed in this appeal are not the substantial questions of law in essence u/S 100 CPC. Even otherwise, no substantial questions of law arise for consideration. Thus, viewed from any angle there are no grounds to interfere with the well considered findings in regard to due execution of the sale deed and the inability of the plaintiffs to prove the serious allegations of fraud and misrepresentation and inability to establish possession of the suit property. There are no merits in the present appeal and is liable to be dismissed as unfit for admission.

ORDER

Appeal filed u/S 100 CPC is dismissed as unfit for admission.

There is no order as to costs.