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IN THE HIGH coum OF KARNATAKA AT aaNGaJ.éQ3j:::%3<'V;~ *
DATED THIS THE as" my 01? 2 '
BEFORE
THE HONBLE MR.JUs'r1cE S.N;:t3A'i'Yz§NAi§5ffA1'%A "
R.B.A.H0.§3V9:§Z % A
amwsnx:
Sri.C.S.Basavaraja Gowda; ‘ ” ‘.
S/o C.ShivaLbasappa Gawdg ” v
Aged about 58 Yea-;£$,.__ V’ ‘ – _ –
Jade Post, " ._ " V smuoaa. nmumr.
(By<.3n.. a;aua¢_.%gmg,%%Aav.; V
SI"£.C.S.Ma l'.3k' E ,3" E' a"c,,;w'
S10 Shivabasappa Gowéisy
Agai ahcmt 52 Ytzars; " V"
_. VR/0 Ciai-pgaichxr, Jaiie-.1F?ost,
% nsammsm.
ve_~:._ an a_*_*
‘1*1 ;js;u a_:ppea1 4’ is filed under Section 100 of Code of Civii
‘against the Judgment and fiecme datad
A ‘E}7’.02;2()03 paswd hi RA.No.54/1991 on the fih ofthc Civil
Judge. {Sr.Dn), Sagar, allowing the appeal and eetlzing aside
‘–«t..:b,c”:Judgment and Dacnre: dated 18.04.1991 passed in
V0_,S_.7No.146/1989 cm the file of the Munsfi’ and JMFC,
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This Appeal having been heard and rcscrvt:d -_”‘1″c;c=1§
judment on 16.6.2009, this day, the Court pmno1;;g_éc§i- 2.
following:
JunGusu;__
This is d::fcndant’s sccon d afipca__ A. chaff”, g n ‘V
Judgment and Decree passed iof
(Sr. D11), Sagar, dated o7.o2,2oo3& ‘l.”?.§3’%:;VVi§l”::o,_54/«’1&99’l’tfifxcmin
the Judgxncnt and of Munsifi
and JMFC, 146/1989
was set asidc-5 »
2. «.i’a:c-ts: this appeal are that the
appcI1a11_t_ heréin is the d£*féfi£iant and the mspondccat herein
‘”i5_ bef§5re””‘fiic Trial Court. For the sake of
.Vc<§r1%a'V§_It;.'~*:1ix:f:::'i:£;if: in this appeal are mfexred to by their
mg com.
” *3_: The plainfifi’ and defendant are brothers. The
j:iis§p:3itae’AA’1:)etwee11 them is in respect of title to an extent of 2
T iacrés 17 guntas afdry’ land in Sy.P¥o.16 of Chagatmr village,
Jade Hobli, max; Taluk. The plaintifi”, defendant and one
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Gadigeppa Gowda are the sons of one A’
On 22.9.1955 there was a paxfition in _
‘Shjvabasappagowda, i.e., the _
defendant, wherein all the p»m_pe11:i’ esA ‘V
Shjvabasappagowda was
The said partifion deed is E1;c.P1 in
the original suit. Though place, the
plaintifl, defendexrfi to BIVC along
with their at axe time when the
partition to live together
even their for a long time. In the
said partitieisethe land was allotted to the
4___eha1e, ut1e~fendai1t;.. defendant on 28.7.1961 sold the
V. in favour of one Siddappa under a
It is recited in the said sale deed that
an veij? day possession of the suit schedule
.4 H ” deliverm in favour of sand’ Sisidapm. It is the
efiazainee” that in the partition deed untier Ex.P1 the
was gven certain lands to his exclusive share which
‘A ‘ ‘Lend be exchanged for suit schedule land which was with the
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said Siddappa afizcr it was purchased by A’
defendant, as it was allotted to his share
partition deed. After getting th;e””‘suitfi “schc:ii1i3_ jagad
exchanged in his favour by VV “
properties, which were sfiém
the plainfifl got the sagnc under
MR5/72-73 and co11s¢:;q1:t;:Lt1_i:ly:–,L ‘4 records
regstcred in his name. 12 the
name of dcfendfleéfzét’ ‘V of plainfifi that
one year prioii’. #0 df and defendant
startcti the defendant tried to
interfere 4_ the and enjoyment of the suit
‘V ” pmpcrtjr plainfifi claiming that the Sufi
belongs to him, which prompted the
suit for declaration and permanent
V V’ injunC’i:ion.\_ ” –
A “ii In the said suit, the dciéndant after scxvfice of
____§i11r1 m£33:1s, entered appearance and denied all the plaint
éxvefimcnts except that the suit schedule property earfier
belonged to the father of plaintifi’ and defendant and in a
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paztifion dated. 22.9.1955 it was allotted to the
defendant. It is strange to notice that in V’
statement though the defendant admits that u
at the time of partition, he refused flip 2i;.’1_é
that after partition, plaintifi,
resided along with their fgtthcr fol such
for a long time thcreafi&r;”«..V:A’H¢ cxecution of
sale deed by him fav:ca111″ .ofputting said
Siddappa in _ property. He
claims that date of fifing of the
suit, he enjoyment of the suit
schedule “denies that one year prior to
the dag. gr oi’ the the parties started living
I I”n.._thc statement at para ‘2’ he admits
£h_ai__1;fic dated 23.7.3961 executed by him in
— favouréiof is only a norms” al sale deed and though it
exeéuféii and registered. by him, he had not «delivered
§o$3e_:.§.§f.on of the same and as on the date of said
-.._ t}pan3actio:t1 he was a minor and as such, the entire
jixtansaction is void. He further claims that he has
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confinuously been in possession and enjoyment of the gait
schedule property from the year 1955 till the date of
suit and neither Siddappa nor any other .
possession of the suit schedule pm-perVtyHa>t ‘4
5. With these rival contentions;’.§he::’i’eti?3I”‘€»eu£{“fi¥af§1s-51*
the following issues: ‘V V V. V
1) Whether the plaintifi’ he the
owner of the by of the
exchange ..
2) he is in possession
schmule property?
‘ %?!1;et£ier:Vg;;;.’l;/;’ hflcfeméigztnt pmves that he was minor on
‘”3«~:=$’j= of’ deed in favour of smappa, as
w.s?
‘X the pIaintifi’ proves the interference of the
‘defendant?
v _ What order or deciee?’
6. Afmr recording evidence the Court below held issues
1, 2 and 4 $31 the negative and issue 110.3 in the afizmatfrvac
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3) Whether the plaintiff has possession ove:«fii:g:I”
property as on the date of thc suit as
4) Whether the appeal is fittorsfi 11}”~w¢d? %:% = V
5) What order or decree’? _
8. The 1″ appellag: Conn: the
parties held the amendm¢::iitV:% plaintifi’ under
I.A.II regarding and so far
as the other of suit schedule
property 1 th.¢F” and right to
me x _ ~he£d in the ammatave.
Consequen’ti3r,”ihe Decree passed by the ‘l’11a1°
Court d§is1:1.issi1’£1g”»t1§e’ of plaintifi” was set aside declaring
: _V.tiiatj£Iic: is tlfiégxbsolute owner of that: suit schedule
.};x1i;aA’.p<.§-sscssion over the same was uphcki in the
said Aappegéi Hie defendant being aggncvfied by the said
" Bccme passed by the 1" Appcfiate Court
the finding of the Triai Court has come up in this
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9. At the time of admission this Court after “~ V.
appcilant framed the following’ substantial qucsfifigfisv H
for consideration in this appeal:
1) Whether the Lower Appe11at&:,__¢o§1}t is” ”
reversing the Judg;nc1;1t.%:§f._th¢
relying on the svt;£at..c::ac;1t”1r;£I}§1e”‘1z1;dcI” 17 of
the Karnataka which is not
admissibgg’ tel-pas’ éw.2′.>
2) wheghér is justified in
3 was major as on
28.07′. A me} of Ex.I) 16?
tific learned counscl for the parties,
the Judgment and Decree wssed by
and after going through the material
‘ on rcdmd holds both the substantial questions of
” th;:’va§’firmafive fiat the following reasons:
REASONS
A perusal cf the Judgment and Decree passed by the
appellate C0111! clearly discloses that it has gone in to the
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pleadings and the docuxmmm produced by the ”
m~appn:ciating the facts and evidenct: of the
case. Admittedly, the relationship b¢t€¢¢ea mg
defendant is not in dispute. The
partition in the family in the is.V7aIs9′ n§t%;i1id”a:i$p§i¢.
What is being disputed ghc dtieczdvgby the
defendant on 28.07.1961 pursuant to
the partition and suit schedule
pmperty in acts by the
plaintifi Pmperty. The stand
taken byigicfenddzit me we deed executed by him
in flavour of “Si_§id.apj3a is that he was a minor
_ as ozzgyjziiat. date} ifhe of defendant is taken in to
..%,1s«.9n the date of execution of Ex.P1, wherein it
aged 13 years, the age of the defendant
2 as would be about 19 years. Admittedly, the
” Ex.P1 is prepared by the fither of plaintiff and
A who was a school-teacher and was await: of the
égC.§%)f aii his chiidren. Thcrcfom, the age of defendant as
fijitcntzioned by him in Ex.P1, cannot be disputed. It is also
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interesting to note that the defendant is not an uneducated.
He is a graduate. In the year 1961, when he
sale deed i.c., on 28.07.1961. in favour of Sfidapp$””fie..’_j%:§e _
matured enough to understand what his age K ”
Ex.Ij).16, Transfer Certificate, may
defendant is little less than 18 aémti’-that 3:-i” A
appellate Court has rightly not g’§én,T:much to the
same in the light of ,. dated
22.09.1955, Ex.P1 and the age
of defend:n’1t”i3 &ai:eeeet”fi:eei the age that is shown
in Ex.D1€i. it; court has relied” upon
the Court in ILR 1998 Short:
.- Note it is_____h.eld that any document
a vahie regarding its vafidity and that it
With this the 1″ appellate Court
has hold that the registered document could be
agam at the ‘I’ran.sfer Certifica’ te, which is at
_E:».4;;)e’1’5′,” which is issued by the Principal of the School.
Vt :j’..:-Ffitther, when the defendant has neither examined the
V’ “person who has entered the date of birth of defendant or the
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person who has issued the certificate, much credence oouid
not be gvcn to Ex.{)16, for this reason, the 1″
Conn has not given much credence to Ex.D16 “.,
finding given by the 1” appcliate Court V V’ H
xeasonablc in the facts and cizcumstanées-of V’
11. The 15*» appellate Court
pleadings 0f the defendant and’TV_ettigien£§ev. Ht1′.’:1e
saici pleadings and has rightly
statement filed before the the extent of
denying facf iL:’iis1tV.’h.c was a minor as on the date
of part1’tio:u iz1 _’th¢ immediately aficr pa.rtitio;a
S he am; higothér» b_j:}o£ne1%.; continued to live along with his
§hé:%%}c:;;4,c:;tion éfsaxe deed dated 28.07.1961, Ex.P’2,
and putting him in possession of the
‘ _pmpérty. in the Sam: written statement at para 7
W he executed a sale deed in favour of Siddappa
A 1961, the said sale deed is only a nominal salc éecd
was not intended to convey the suit scheduic pmperty
favour of Siddappa and no right, title or possession of the
suit schedule pmpcrty is conveyed to him. With this kind of
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pleadings, the conduct of executing the sale deed in the year
1961, thereafier txying to deny the same by taking advantage
of some stray document to say that he was a
setfing up a claim that the sale deed executed tfy _
year 1951 itself is rightly rejected by 1-éfappelkuc e ”
much credence is not placed on the ‘ c. c
of the defendant while decidingfiie. iss1 1es fega1diii,g
of the suit schedule property in of Sifl. It is
further observed by 1″» t11e ciei’e11dant
who is denying execution cf and putting
the of the property is a
witness to the is entered in to between
V Siddapjge and the which is at Ex.P-13 and pursuant
deed ail the nesmue documents
§to¢m,~¢&1c dearly disclose the transfer of title of
the siiit seiiersfiilc property in favour of plaiafifil Further the
H H ‘T by the defendant before the Special
Land Reforms on 19.01.1979, which is at Ex.P-3,
efiect that the suit schedule property has been in
VA “fiosscssion, cultivafion and enjoyment of the plainfifl’ and
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since 1961-62 the defendant has not been in ”
the property though the katha entry shows 1%; t” ‘V
standing in his name in revenue recorés.._ A ‘ft1e
Court having gone through these
that puzsuam to the sale deed’ ‘siddappa
had become the owner of the as he
was put in possession’ the defendant,
pursuant to the ‘thy the said
Siddappa in the defendant is
also one of secured title and
possessicitz of ‘property, plaintifi has been
in possessAiez1L’and’ the same since 31.05.1972
and as each, that plaiafifi is the owner in
eejoyreeet of the suit schcdun: property and
the contention of tiefendant that the
— Vt 3961 was void, for the reason, that he –
a on the date of dwd dated 28.7.1961 in
Ex.D16. Them is no iflegality or infirmity in the –
V” and Decree passed by the 1″ appellate Court in
V”-._lj§A.No.54/I991 in reversing the Judgment and Decree
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passed by the Trial Court in ().S.No.146/1989.
substantial questions of Law fraimed in b
answered in the afirmative. (:1;
by the defendant is liable to be dismissed;
Accordingly, the: appeal is wifheafi
Nd/–