High Court Karnataka High Court

N Somanatha Gowda vs Puttamma on 8 November, 2010

Karnataka High Court
N Somanatha Gowda vs Puttamma on 8 November, 2010
Author: S.N.Satyanarayana
IN THE HIGH COURT OF KARNATAKA AT EBANGALORE
DATED THIS "ma 08TH DAY OF NOVEMBER 2019*-._bT
BEFORE  .. .

THE HON'BLE MRJUSTICE s.N.sATYANA£'%gf§YAfV:'A:"'   "

RsA.NO.8g2Og5;_'''«. «_ 

Between

sm.N.soma§;ha Gowda,
S/O late Nanjegowda,
Major, [/0 Arahalli,
Kasaba Hobli,

Kola: Taluk,

Kolar District.

{by sri.K.H.s;5r:§g;:a£:eagei:? ;a_;:'rv}    '~

And:

1. ;VVSrnt;'¥T"u1':i'_aII1»f'ir'ié1,   .
'W/=O'1-ate'Muniyappav---., ' -
Major. A    

2. V . _V Sri.N;'N§i1'a.yané1sWi1iI1y,
 S/0 late Muniyappa,
~  ' " . . . . . .. '

  T. 'VSri."Vé:r;l{ates11:1;..>pa,

V' 'E3/'O. _lat¢ Gopalappa,
' V Majér 
AH  .1'./' O «ifxrahalli
Kas-¢1ba«..Hob11, Kolar Taluk,

 O Kolarf-)istOrictt.

" --..VV'{b}{5Sri.G.Papireddy, Adv for R3,

Rl&'2.msd.,)

 

... Respondents

W

– 4 –

come to the Subwregistrafs office at Kolar. But, they did not

come on the day they assured to be present before the Sub–

registrar. After several such attempts, he got a panchayath

held to get defendants I and 2 advised, which eridedjiiriv

Thereafter, he got a legai notice issued on : V’

upon them to come to SubAregistrar’s~ office.’ at andt_to._

execute the registered sale deed con’veyinlg’lthe”s_uit psclie_titile«:.

property in his favour. Thou-gli….the said duly * it

served on defendants l__ and did not “re,sponkl to the
same and deliberately qAui.te.i;i;Ieiicté fiied the suit for
specific performance g.frV.,agree1nentl ‘of deed dated

27.3.1989.

Svfiltllis aisol case”‘–that prior to filing of suit he came

to know that defendants’ and 2 have sold and conveyed

< sur'_.t_' prop'ert.y«in favour of 3" defendant, for nominal

defeat the legitimate claim of plaintiff in

securing' sale deed of suit schedule property.

Pursuant to said sale deed defendants 1 to 3 are attempting

A tol"cau.se obstruction to plaintiffs peaceful possession,

cultivati()r1 and enjoyment of suit schedule property. Hence

"*1

_ 5 _

S. In addition, 3?" defendant has pleaded that
defendants l and 2 have sold suit schedule property to him
on 25.5.1989 for a sum of ?.56,()()()/–, obtained advancesum

of 16,000/– on that day and executed an agreement

agreeing to execute regular sale deed within *

from that day by receiving the ba1anee_ 'sale "c'oVnei'tier'ati_.'on tofu V'

$50,000/~ at the time of registration iofAtl1e"sal'e:'d€etj:;ae,,..AItI1,1S

his case that defendants 1 dldvnot pe1*formv.tl1Ve1r

of contract within the stipulat:e'd:_ti–11_1e. he} issued a
legal notice to defeririants *i?,_'».call1_:1g upon them to
complete sale ,trar1sa.ctin:.r_1'*~.pursuant. Vt"oi_'–agreement dated

25.5.1989," 1%n'tenablje""V.'reply was sent by 18*'

(1efen'dant.; "filed" a Suit in OS.No.105/1989 on
1.8.198§'g;:: the'fiIRe.of Civil Court, Koiar. The said suit

uposted V"t0.V:v19./$1990. Before the hearing date on

defendants 1 and 2 approached him, made

._ f,~e_rsistz1 of ?.50,0()0/- in return of which they

.A wtyuldébe willing and ready to execute the Sale deed in terms

” ,,,_Vef..:tl1e agreement of sale dated 25.5.1989, for the reasoe/,\

– 7 –

that they had to perform marriage of the daughter of 1st.

defendant and sister of 2″‘ defendant on 22.3.1990. In this
behalf, the 1st defendant who was busy in preparation of

marriage executed a registered power of attorn.efy~_ on

13.3.1990 enabling her son 2′” defendant to execate’ t–hf_e— _

deed of suit land to 3″‘ defendant. The 3*” 1′

sale deed prepared, executed and registered, on

paying balance sale consideration lt: iS’:”§I’1′.iV€~s

case that balance sale consideratiori of ?.f50.,(:1(J(l:/– was paid
by him before the Sub–Registr;ir the tliflfi of registrafiorl of
sale deed executed in his favourand tofeffect there is a

recital in the of 3?” defendarzt

that at’lthe– timed’of”e9€eeiiii;§f;._and registration of sale deed of

suit sct1ecIule”p,roperty: i11..l”1_.’is’ favour, defendants 1 and 2 put

pcssessnion of suit schedule property. He has been in

.Ae’xe,l_asi.yAeVA.possession of the same from that date till date of

filiiigp «of’wr_ii’,teri’ ‘statement.

fit is further contended by 3″ defendant that

“”fl.A’plaintiff was quite aware of the fact that this defendant has

ehtered in to agreement with defendants 1 and 2 for

-10-
3″‘ clefendant examined himself as DW.2 and in addition got
other seven witnesses examined as DWs.1 and 3 to 8 and got

marked documents I’:3z;s.I) .1 to 8 in support of his case§r.._i”._

8. trial Court, on appreciation of H

oral and documentary evidence on record,–.proceeded tc.

decree the suit holding issue Nos. Lto

issue partly in affirmative and .partly’ .in”negati’Je;»5″H an;(il’6t?1.”» ~’

issues in affirrnative and aciciiticnal issue in negative. In the
result, trial Court answereii ti1el”issufes in” favour of
plaintiff, in the aifir:native_and one, was framed in

favour of 3*” §de’fendant._ in negative;_’Acc_ofrdingiy the suit was

decreed defendants E to 3 to execute the
sale deed of suii;_.p”roperty in favour of plaintiff. 3m

defendant in _whose favour a registered sale deed in respect

‘l V’ A0f…’,;i1ii?.”iSCli£3t1i1le is already in existence challenged

and decree by filing a regular appeal in

on the file of Civil Judge {Sr.Dn), Kolar on

5.9. i~919t.:-..

“”‘i

~11-

9. in the said appeal, plaintiff was 1*” respondent and
defendants I and 2 were respondents 2 and 3.
respondent who was plaintiff in original suit ~
appearance through Counsel. Defendants 1′ and
respondents 2 and 3 in the regular apgpiealliagain

absent in the first appeal.

10. in the first appeal; tirade
an application seeking to filed by
him and for production of ‘xivhich was
allowed by 1st. judgment
and decree Iaassiod rexnanded the matter
to The said judginent of 13*
appellate! ” tiliailenged by plaintiff in
MSA,No.5/l9Q:3’ at the ‘file of this Court, which was allowed
‘~ , dated T{.”I$l93 with the following observation:

appellate court is hereby directed to

A diesues arising out of allowing the
irlterlooutory application seeking amenclment
p it add production of addiiionai evidence and
remand the matter to the trial Court with a
direction to give opportunity to both the parties

(“T

-12..

on record to lead evidence on particular issue or
issues and thereafter to send its report to the
appellate court. After receipt of the report thefy”»c.
appellate Court shall dispose of the
merits on aii issues arising out of the C”
matter of the suit. As such, this ‘A
allowed. The judgment p_assed_’:

the 2LPI>ei2ate Court is set it I It

1}. Thereafter, regular
appeal, framed addifioiiai’ issiie;ej_ar’1ei=– of it directing
tria} Court to record issues and to
resubmit it this order Was
aiso ..iri”CRl§f.1’V\io.Ai26/1994: on the file
of this pbty its order dated 12.1.2001
dismissed framing of additional issue

directi;;.g”tri.a} Court to record evidence is in tune with

order puassedi by this Court in MSA.5/1993. In the light

C’ ._of’.._ppthVesey.._o.rd’erS, trial Court recorded evidence of 3″‘

defe11d..autv,”‘”‘ appeiiant before the 3.3’ appellate Court on

A. additioria} issues relating to the status of bonafide purchaser

for-value without notice of prior transaction. It is seen that

“”1

-14-

established Ex.Pl as a concocted document to defeat his

rights under Exs.D5 and 6 and held that jiidgmentfszand

decree of trial Court is perverse, illegal and not_..1?_iise(l:’ori’-«V

evidence on record and requires interference. ‘Whileceidoing.

so, it held that W respondent who was plaintiff in tribal

failed to prove execution of VEx.PTf:prior to “exeeution”~of

Exs.D5 and 6 agreement and””V.sale V. deed..L”exeeuted’V’ by if f

defendants 1 and 2 in l’ayor1rA..o’f’ ‘defendant;–.. with this.
claim of plaintiff was urged by 3”

defendant were4.lupheI(.:iA.VH by the
judgment dlpstdméyppeggate cguyt in
reversing—Vthfe’~Vfinding has come up in this

appeal; = ‘

;’ ~13. 113″ ‘proceeding, notice was duly served on all

res’poni:l’ent”sz_ howeifer, only 3″ respondent entered

flV€’~…v:’.3Td defendant in trial Court. As in the earlier

twn ;)ro£eedings, respondents 1 and 2 i.e., defendants 1 and

2 in “trial Court remained absent in this proceeding also.

Court after hearing Counsel for appellant admitted the

appeal framing the following substantial questions of lawn

‘*1

_ 15 .

” 1) Whether the first appellate Court was right in
reversing the judgment and decree of the trial

Court in not accepting Ex.P.”i, when the fi1’St

deferidant, who is another co–owner of the

property, had adrnitted the same in the written.
statement filed by her in 08.105/89 and f1n*’ti’rer;. , ”

the first appellate court was right in throjlwvixtg-.1

the burden upon the plaintiff’

defendant had taken up piea said’:-tr,__. A’

document is ante~dated and fabricated? , V’ 1

2) Whether the first appell’ate’»Court”wastrigtitgéiriw

not accepting the:writt.e:1″‘staterrrent I£§{,F’8
by the first defendant., in 89 on the
file of the _1_earned__AV:ddl. which

filed bylhthe Sifixldeiendant for specific

perftmrnaance-.agai’iist”defendants 1 and 2 and

whether the iindingsléand the reasons recorded

A. -by .first..app’ellate Court on the contentious

poirits hoIding..tI’1at EXP} is not proved by

drawi.r.1g~Vac1verse inference and non–surnmoriing

:”dVot:u:iment registration register and mark it

th_rgiu’g§_hi:: PW.3 is in conformity with
V ” ..s’e;:s;57,5s,67,74, 75 and so of the Evidence
i it Aw

Um.’

– 16 –

14. After looking in to the pleadings, the documents

relied upen by both parties in Courts below and eviderzce

and judgment of 1*” appellate Court, this Court answer

substantiai questions of iaw in affirmative for the ‘4 3

REASONS

Heard the counsel for appellant’ ‘1

regarding substantia} questions_ of 1a§arAfra;nedTi:.$y’.tIi1is court”

at the time of admission of this’V’a;tf:$V'[;ea}, 1)erused;V-itheiéfindings
given by the courts .§:’$e~},ow tiieirjuj-udgmentsfv Before
answering the aforesaid of law this

Court would 1ike’:to’1’ana:fyse two ‘setsj_ofv and events with

referezfieeffffto retfheirfé contended by piairztiff and ST”
defendant in the

15. eouidffbe esteem from records 3*” defendant

enteiged “into liagreernent with defendants 1 and 2 on

» foripurrchase of suit schedule property. The saie

ife¢:;s:;eer2;t1aa;:§156,000/–. At the time of entering into

a sum of ?”.6,000/- is paid as advance and

if 3.50.000/~ is agreed to be paid at the time of

ierrectitiorz and registration of saie deed in favour of 3″‘

“”1

– 17 –

defendant. In the said agreement, time is also fixed for

registration of sale deed i.e., the said sale deed should be
executed and completed Within three months from

25.5.1989. Thereafter, it is seen that 3″l defendant ..has

issued a legal notice to defendants 1 and 2 on

calling upon them to receive balance sale consideratioiiifandv ~

execute sale deed, which is at Ex.D_8.-… To av.’

reply is sent. by 181 defendant on 19.7~.,.195l’39-.: the

she denies entering into of V 33*
defendant, wherein she t:a.tegt)rioailVlyu é%’E§1te$’fi1u9:~t:»sl~§l§has not
entered into any agrere1ra:e}:tAv§rith_ _for sale of said
property. The said reply, she

denied V’-her lerzeot-rte” sale deed in favour of 3″‘

defendant.”.,_’Ihereafter,” seen that a suit for specific

V. perforniahce islnfiledv by’:i’3″* defendant on 1.8.1989 numbered

During the pendency of said suit

heffore anj)_b_od$f”eould file written statement it is seen that

deie’n.cla5nts’vll’V’and 2 have agreed to settle the dispute between

]then1selves and 31″” defendant. In this behalf 131- defendant

ll and registered. a Power of Attorney in favour of her

.1″?

-18-

son authorising him to convey suit schedule property in
favour of Sr” defendant on behalf of himself and also on her
behalf. Thereafter, on 15.3.1990 the sale deed 1s executed.

To the said sale deed 13* defendant also affixed her signature.

Thereafter, on 16.3.1990 the said sale deed is registe1*e_d–cTii1A4

the office of sub-registrar. In the ineanwi1ilve,VV”=said'”: 9′

OS.No. 105/ 1989, which was pendingbefore coi,trtV”li)eiow if V’

was posted to 19.4.1989. Now leaving

defendant at this stage, let i.1s.afr;-alyseA’the d.at’e.sA = 9′

pertaining to the transaction ofVp.1e:.i~r1_tiff._V

18. Plaintiffs case”‘is”that.Lhiig’ent:ere§i’i:1to an agreement

with 27.3.1989 for purchase of suit
schedule eipropertydfor consideration of €6,000/–.

On 4jthe_ same ._da’y”, he paid entire sale consideration.

Aeclording tohim, Fragmentation Act, which was in force as

oni’_-did not permit registration of suit schedule

property ‘irifhis name. Hence, execution and registration of

sale deed was deferred. Instead, parties entered into an

9’ agreement wherein vendors, defendants 1 and 2 received

d x V entire sale consideration. delivered vacant possession of suit

“*1

-19..

schedule property in favour of plaintiff. It is seen that
thereafter, nothing has been done by plaintiff until
22.3.1990. On that day a notice is issued by him to

defendants 1 and 2 calling upon them to execute sale deed of

suit schedule property in his favour. In the said

which is at ECx.P2 there is no reference to the ‘

15.3.1990 executed by defendants 1~a:”3d& 2

defendant. Incidentally, said notice is not’~re;i£ied and

is acknowledgement to sfi<)'\)s.f…."t.Y..1£it it is ~32"d v 9'

defendant Narayanaswamy on___ .IVnterestingly,
everything starts happening day i.e., when

plaintiff-iss1.ied._"not3;ce 1 and 2 on 22.3.1990.
1=-9% defendant '..xVrh'e':'i:-*._fie_ri1:riiiir1g' marriage of her daughter on

23.3..i.990"',__' takes 'to seek advancement of

os,,m%§.'1e5/1.9Sa.._fi-em i9.4.1.99o to 23.3.1990. On the same

.fiies'«-written statement in the said suit stating that

entered into agreement with plaintiff on

27.13.1989-,for sale of suit; schedule property for valuable

consideration of Rs.6,()O0/~ and she has put him in

9' possrassion of suit property aiong with her son. On the same

''''''i

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Clay, she also lodges a complaint before Tahsildar, wherein
she reiterates the so called agreement of sale entered into

between herself and plaintiff and prays that her

should be removed from revenue register in respect.-*,j”::)xf_.f’s.L’1’it

schedule property as kathedar and to register ~

favour of plaintiff as he has been put .i_1_’1 poslsessioin l’ofV”s.1.1i.tV

schedule property way back on 27.:3i1Q89;V

24.3.1990 she prepares a privat-ex cornplaint

200 Cr.P.C. to be filed ‘–A(3:lv:tiefvvvf?Judicia1
Magistrate, Kolar. again::3t_A ‘?’;*’-‘=’*__ defendant, 31″}
defendant and persons.»V–w:ho. and scribe to
agreement of 3rd defendant
alleging’ that “eo_:l’1uc’ie’d together and created false
and fictitieus of 3′” defendant. Though

saipdrdoeunaent ‘iSVV:}v)I’€p:aI’@(l on 24.3.1990 itself, she changes

it;s_.Vlt§at’e:p.ag”-_3(),3.’l99O and subsequently changes it to

that private complaint. The result of said

private.-__’eom:plaint is not placed on the records of this Court

thisscourt is not aware about that. In the meanwhile 3″‘

” ‘edefendarit who has filed OS.No.l05/1989 withdraws the

Rat]

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same on the ground that in the light of suit schedule

property being registered in his favour under sale deed dated

15.3.1990 suit does not survive.

17. In the background of these two sets _

represented by plaintiff and 3rd defendant,_.me

questions of law frajned in thislappeal} w”jll.:4.hav’e’~

analysed. In OS.No.239/199(}*filed 15y._;5laintiff”den ,}t’4.:[;9é)o

trial Court after recording etiidetice has
proceeded to accept’ Tithe a;\drerItner;tsdiA’~-nlade plaintiff
regarding dates and events ‘in th_e tifandsaction between

plaintiff and defendants 1.; have taken place

ignoring the eikeptsuwhi’cth'”hauef taken in chronological order
with reference to’*r.iates and events so far as it pertains to 3″‘

defendant and has”come to a conclusion that agreement of

between plaintiff and defendants 1. and 2

has.-:*’co1ne into place on 27.3.1989, during the

snbsist_ence}’of E)x..l?’1 transaction between defendants 1, 2

and come into place culminating in execution of sale

(lead of suit schedule property in favour of 3″‘ defendant.

,V___’i%’I”1erefore, the sale deed. which is executed by

W

-22..

defendants 1 and 2 in favour of 3rd defendant is not valid.
and binding, plaintiff having entered into agreement vide

Ex..IP1 and having taken possession of suit schedule property

under Ex.P1 is entitled to get saie deed of suit«~~.s.eh:e’dé’i1e”

property executed in his favour not only by de.fend.ant{s’i.1l’ano*

2 and aiso by 3*” defendant.

18. Whereas ’15’ appellate court’.he.’sV_ the

In a difference perspectlvei”by fran1p11gj it for it

consideration as referred. to abo’v’e. “a–ns’werecl them.-ivn favour
of 3″‘ defendant, which is ei1a”i}._ei1ged”ienthis appeal and in
respect of which’aforesaidtsugjbstfitiai Vqtievstions of law are

framed. . , a — .

is’). C_<)ming«.to'i'1%f*–st.;bstantia1 question of law, it

revolves aroundVre.§ee~tihg"»iV1%2x.P1, agreement of sale dated

as not 'b.E.€'.'71 proved and established by plaintifl"

'beyend»_aH reasonable doubt that it has come into existence

axis? also finding of courts below that burden of

estaxbiisiiinhgfi said document is on plaintiff, is held to be

V' .. e()'rreet for the following reasons.

W1.

-23..

20. As could be seen from dates and events of

incidents referred to above,f£x.P1 is alleged to have come into

existence on 27.3.1989. Plamtiff has not establisiieriV:”oe:foi’e’

this Court what was the value of suit schec1uie~,”:firQper’.€v”les”1 ”

on that date. it is said that he entered into it

purchase of 1 acre E6 guntasd-¢of:’_’_’

consideration of 3.6.000/~. Int.h’e,saidAagreementciause is * V

included to say that though consideration was
paid at the time of eiaieiriiig.iii;0f.:..a;§fe–¢:;i,}§:i: sale deed could
not be executed,’ifo r tligireaféonv Act that
is in force. suit schedule
properhi _ Ijf”1V’\§§vAI)port of execution of this
agreexnent plaintiff 3 witnesses. Among them

PW.3- iiisliddaiah Shetty in his evidence

it eai.e§oriCa3E3I..&states””that he never mentioned at the time of

entering ‘agreement that Fragmentation Act would come

in i’of’registratioI1 of suit schedule property in favour

of plaintiff. It is further seen that plaintiff while issuing

on 22.3.1990 has stated for the first time that 15 days

prior to issue of said notice he has come to know that

“*1

-24-

Fragmentation Act wouid not come in the way of execution of

sale deed. in his favour. However, he has not piaced

anything on record to show that in the first iristancei

was in force restricting execution and registrationisicf ‘sale

deed of suit schedule property in favour

and said Fragmentation Act was subsequentiy r;;:pAealed.n

entire averment of plaintiff to he it
is with an intention to §3eii’evei_:that_Ex.Pi ivsgenuine. It
is also to be noted also a Stamp
Vendor has stai’:e(1.._in inairitained a
register, in favour of
purchasers ‘incidentally, in this case 3*”
ciefendant’–at of his written statement had
taken a is a concocted document,

has coriie” into place subsequent to the sale deed in his

,Af8t’ef,().i/iI’\\p.., such kind of serious allegations regarding

geii.nine1ie_ss ()V:fC{0CU.IIi€IIt, it is expected of piaintiff not only

to “prod.ucev”said document, it is incumbent upon him to

h esiablisiiffthat the stamp paper on which said document is

”-created was purchased on the date mentioned therein i.e.,

W

/
4′:

h answered in affirmative.

– 25 –

on 27.3.1989. Though the scribe PW.3 states that he

maintained register, steps are not taken to produce said

register in the court to denionstrate that Ex.P1 has actiially

_ come into existence on 27.3. 1989 itseif with refereyI.1.(:_t”:_&»l;'<:3'f.'sale"
of stamp paper on which said agreement
lnspite of there being specific aéniaz.

regarding existence of EXP: on ‘and”tb.er.e

specific allegation that it is ‘c_on-“ii . avp_o’ellate'”‘–co’urt’ has rightly come to the

conclusiori4_tnatE2£;Pl a concocted document. The

concltision at IS’ appellate court is also based on

the above siiirnises and conjectures appears to be just and

prop_er”r1ot call for interference by this Court in this

second Therefore, IS’ substantial question of law is

Ltjk/1′

..2fi…

21. Now coming to second substantial question of law,
which is regarding e.xecu.tion of sale deed at Ex.D6 which is

said to have come into place after 3″} defendant hadgclear

notice of Ex.P1, again we have to refer to the eventsl:’w..lLii.cl2..

are referred to in earlier paragraphs in 1 V’

with reference to the dates. As could’ be seen from records,

3″-1 defendant had filed suit for Zlspeeiiiel

OS.No.105/1989 on 1.8.1989.__V”‘-m theflsaid _suit,’§g,’urnrnions = ”

was duly served on (ief§~3r1dar1tVs_._f:l.:A’~@d_ 2. lhllnf. suit
even before filing of 1 and 2
came forward to settle who is
plaintiff in Wiheijeftrvlliléit”défendam agreed to
executea attorney in favour of her son
2nd defendant to (l.3:lT::f’§’rvldefendant, to get sale deed of suit

scl1eii.1ule~ property in his favour from 21*” defendant, which he

.vvo_uld heA.executing not only on his behalf but also on behalf

Of his defendant. It is seen that with the help of

said regilstered power of attorney 21*’? defendant executed sale

H deed infavour of 3?” defendant on 15.3.1990. it is also seen

l on 15.3.1990 though 131 defendant has

W:

-27..

executed power of attorney in favour of her son to execute

the registered sale deed, she has also executed sale deed by

affixing her thumb impression. However, on 16.3.1.99O«<.4fth.e

said sale deed is presented by her son and the »

registered on the strength of registered power" .attor'neyv

that was executed by 181 defendar1t:_"'a.n'dfsuitV"'scihee:1u'iej

property got conveyed in favr__)_ur M, tiefejndanti on

16.3.1990. As on 16.3.1990 sagn;tp¢s;NGift:os/raga was
posted to 19.4.1990 ii1i:ng§;:'~.writter1 statement by
defendants '1 and__2. It seer: to execution
and registraticih 3"' defendant 15*-

defendant V. i*ro1:i”‘»§19;4.:990 to 23.3.1990
and her on that date. it is for the first
time that éffeentention that she has already

soidtsuit sch’ed._uie property in favour of plaintiff on

.b:”A’i’hvis submission. of hat defendant will have to be

an’ai_ysed:’wivthtreferenee to Ex.B7 which is a reply sent by her

to 3?” defendant to a notice issued by 3’4 defendant calling

upora her to execute sale deed of suit scheduie property in

favour pursuant to Ex.D5 which was executed by her

‘*1

-28-

and her son on 25.5.1989. in the said reply on 19.7.1989,

she had taken a specific contention that she is absolute

owner of suit schedule property and she has not en.tei*ed’ir1t,o” ..

agreement of sale with anybody, much less 3*?-..defe11dar1t,–..’9

who had caiied upon her to exec1.1te.’saie”deed, If? is”.

read with reference to written state-trictit fileci; here ‘Ont’

23.3.1990 it is obvious that 13*’-…defer1dar1t.isaajhpathoioéical 1′

iier. As she was makihgya fa.1se”st_a;terit’.eht irii’1er~”r:epiy dt.
19.7.1989 wherein she agreement with
3″? defendant .i;orv.._sai-at property and
categorically” suit schedule
property the first time on
23.3.l990to execution of sale deed in
favour of idefei1darit’* taken a pica that she has

entefied into agreeriientiuzith plaintiff for sale of suit schedule

repeated the same in her complaint dated

9′”2_37′;9.”‘;’_s__p Tahsiidar. She has aiso repeated the

ir:_’her”‘private complaint which was initialiy drafted on

24..3.19’9(¢), subsequentiy fiied into court on 2.4.1990. By

“AAlVookir1g into all these things, it is clearly seen that 3″‘

W

-29-

defendant when he purchased suit schedule property right
from 25.5. 1989 to 15.53.1990 Ie., the date when suit schedule
property was executed in his favour vide Ex.I)6 he was not

aware of alleged sale transaction between plaintiff’ and

defendants 1 and 2. It was not brought to V.

anybody i.e., either plaintiff or (1.efen(1a.nts”‘«’._f1 M

‘1L’herefore, as on 15.3..199() 3?” de’fenCi’ant ‘was “t;non’af1de’*;

purchaser of suit schedule ‘~

consideration from defendants and 2. V. ‘ITherefovre.”«Saie deed ”

vide Ex.D6 dated 1.5.3.3990 is-~not*.a”dAocurne1f:vt.. which was
exeenteti. in his favour when gnritiee to him with
reference to alle;-:_.{ed__ agreement 27.3.1989 said

to have beerii.e§u(ee’t.i,t.e(l. 4by:.'(i–ei’ei1dants 1 and 2 in favour of
plaintiff. Cotirt answer hoth suhstantiai

q’11esi.ti0nS of law,i&1’1 favolir of 3*” defendant and while doing

. so ofjserve that there is clear attempt on the part of

2 with connivance of plaintiff in creating

Ex.i°1 with intention to deny legitimate transaction which

was entered. into between 3″‘ defendant and defendants 1

K_;1.r1;c:72 on 25.5.1989 Vide Ex.D5 which cnllninated in sale

M

– 39 –

deed dated 15.3.1990 vide ECx..D6 and which was registered

in the office of Sub-Registrar on 16.3.1990 and pursuant, to
which 31″” ciefenclarlt is in po-s:~3essi<)n and enjoyrnent of suit

schedule property.

22. In the result, the judgment and (iee_:1’Hee”‘ .

17.9.2003 in RA.N0.75/199.1 1’ev(~3rsi;;g the: 3;:1ci,,” a

decree dated 22.7.1991. in ‘..eV0n’firV§ne(},;Ve_A«

consequently the second ap1)e2§.[-filed Vby ‘}V5§3.i{1tiff” i_S.1f_té5jec:§teci

with exemplary costs of 15,000 /;4L’pe:.yz1191e ciefefgdaxnt.