"IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 05*" DAY OF OCTOBER, 20;
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRQEOOYO '
REGULAR SECOND APPEAI_g1§f(i):," 19915 OCFO2;oe3yy%
BETWEEN:
Sri. Boregowda,
S/O Shivanna, _
Aged about 24 years, A _ ,
Residing at Ijjaiaghatta, .
Honakere HObli,=-- V -- ,1" A
NagazfiangaiaVifalgig' _ .--
Mandya I')i_St1'iC_t"--f5--7] V» A ~ y_ .. .APPELLANT
(By Shri. i2'OOp'esf1 ~AdvOcate )
'. _ A. A ..... .. V
A S/O.7B_'OtegOwda
,Aged~"ab()ut 56 years,
Annegowda @ Raju
S/0 Shivanna,
Aged about 27 years,
A' H H 3. Sri. Ramegowda,
S/O Late Nalasimhegowda,
8
ix)
Aged about 56 years,
All are residing at
Ijjalaghatta Village,
Honakere Hobii,
Nagamangala Taiuk,
Mandya Bistrict.
(By Shri. s. Vishwamurthy, Advocate fQfsR.euSp§).i1dEtni'NQ_i.3;:.:tii
Shri. Vastt.K, Advocate for Respon'den"t_No.l,'VRes»pondei1tvA
No.2 - Served)
This Reguiar Second Appeaiisiiitgd aiideriseetion 100
of Code of Civil Procedore, 119208,' age.i.nfs't..the judgment and
decree dated 1.12.2007 ;iassed"inf':R:;A.'N_o[7f2007 on the file
of the Civil Eudge (Sr.IA),ii.).,._at1.dtIMFC;,Na3gaihangala partly
allowing the appeai_antiE modifying~~.ti1eV judgment and decree
dated 27.l0,20_08{passed«in1O.S.No..S-4/20023 on the file of the
Civil Judge" (Jri.D:3.)' "aiid,J wiiagamaogaia.
Apxldealyi coming on for I-Iearing
this day, the ctoui*tft§~e4liveied__the following:
";U;oGMENT
- v ., fflie i:ap5;iel.laet wasitiieiolaintiff before the triai court in a suit
'foe gjartiftioii and' separate possession. Defendant no.3 had
coiitericiedtiiat the plaintiff alongwith other defendants had
'exeeuted a registered sake deed in favour of the said
"defetidant. However, the document of sate was not produced
2 before the trial court. It transpires that though the appeliant
@
and other defendants had received the sale consideration, they
had refused to execute and register sale deed and the lnatter
was pending before the District. Registrar;
Registrar following the procedure under the
Registration Act, 1908 and under Section.fl75._has'direoteda;v,C
registration of the document a'flte'r_vholdi'nglan entiuiry'..__T1ais C
was brought to the attention ofpth.e:'i'oWe.r appellate coiurt and
the Deed of Sale was -lower appellate
court by recourseV'to_Or§lelrVlXl;l Code of Civil
Procedure,l(hel'tfe.in'aiftetf'~~referred_.to as the 'CPC' for
brevityii). Thatg.£iPI5liVcatio'nl_'havingwbeen allowed, the lower
appellate cotirt tiph¢1a__ith5 contention of defendant no.3
that the suit lpmpeiily which was only one item of property,
sogldliuadervthe said sale deed. The present appeal is filed
itoih'-cionteiid:.. even though the District Registrar had
directeclrehglistration of the alleged sale deed, the appeliant
A challenged the very execution of the safe deed by
recourse to an independent Civil suit.
é
2. The learned counsel for the appellant would submit
that the substantial question of law that was framed at'"the
time of admission of this appeal is as to whether the"
appellate court was justified in receiving additiionalvw.evi.denceD
on behalf of the respondent, withouti=.reco1?diivigiireasons ;_i i
admission allowing the doctlnientg to be iplacediionilfetcord
without recourse to the ;_p1’ovisio_n.ii:Aof_ Order 28 of
the CPC’ which mandates that sthle::’doTctttn€f,ti’t.Vbe marked in
evidence and. «’ther_eafi[er “especially in the
ci1’cumstance thiatggtlieh’-.appe’llair§’t~..hasiiitiled the suit questioning
the vefv eitecutlon reigistrationiiof the sale deed.
3.i’ the li_glr-theftihei”appell.ate court having accepted
the_sialec..deed was duly registered, even though it is
.i soL1_giit_ito. ‘oe’questioned by the appellant in an independent
‘suit,-.7the ‘tiirrdiisgiiiof the lower appellate court that defendant
no.3 had: established his case that the suit property having
been; purchased under a registered sale deed cannot be
M tiatilted. Order XLI Rule 28 of the cpc prescribes that
wherever additional evidence is allowed to be produced, the
Z
appellate court may either take such evidence or direct the
court from whose decree the appeal is preferred, or any otriei’
subordinate court to take such evidence and to sendfit~ .l_t0.__ti1e L
appellate court. Since the document produc.ed.,V4_ a ”
registered sale deed and even though :_tl1e.3lowe1%.lappel:late”ll”$.v:t’-;~-_VtzQ
the document marked in evidence”‘p’:throu.gh xx.:_lIness and
thereafter addressing the remained
open, since the notilproduicejdlbefore the trial
court, has an explanation that
subseqzucriy the District Registrar,
the document’ and therefore, has been
p1’od:;1cedi I~Ience,l_Vlthere is no substantial question of law that
would _vaiiise:”fo1′ consideration in the above facts and
Circw:nstaiic’e–S .l it
-However, the learned counsel for the appellant
.l_i:wou_ld yetplead an apprehension that if the present. appeal is
. diwsrriissed on merits, it would seriously prejudice the case of
5
the appellant pending consideration insofar as the very
execution and registration of the sale deed is concerned. 71′.”‘i’1ips
apprehension is misplaced as the appellant would
to establish at the trial in the pending suit thathe ,\\¥\§\\’\\{p/’}i(i)::I,«.i]”1 vi ”
fact, signed the document and registeredA.the’–_sarrie.i”‘i’:l’he”=:i;_*
present appeal being dismissed would’.*t.hiere.forev:iinoptsiaes an
impediment for the appellart_t…l:to_ “‘:=;stal).l’isl1»,_’Ahisi§ case
independently in the pendliip, ‘saiit, however, fails
andis dismissedfiii H I
NV