(Prayer: This RSA is filed Under Section 100 of the Code of Civil Procedure praying to allow the appeal by setting aside the judgment and decree Dated 08.06.2010 passed in O.S.No.185/2007 by the Addl. Senior Civil Judge & JMFC-I, Raichur and which is confirmed in R.A.No.86/2010 Vide Judgment And Decree Dated 24.01.2013 by the Prl. Dist. Judge, Raichur and consequently decree the suit of the plaintiff.)
1. The unsuccessful plaintiff has filed the present regular second appeal against the judgment and decree dated 24.01.2013 made in R.A.No.86/2010 on the file of the Principal District Judge, Raichur dismissing the appeal, confirming the judgment and decree dated 08.06.2010 made in O.S.No.185/2007 on the file of Addl. Senior Civil Judge and JMFC-I, Raichur dismissing the suit of the plaintiff for declaration, injunction and rectification of the RTCs.
2. Brief facts of the case are:
It is the case of the plaintiff that she filed suit in O.S.No.185/2007 for declaration of title, declaring that sale deed bearing document No.138/1992-93 dated 21.04.1992 is null and void and is not binding upon the plaintiff. Further for permanent injunction restraining the defendants from interfering with plaintiff's possession and enjoyment of suit schedule properties and for direction to the defendants to rectify the revenue records of the suit schedule properties in the name of plaintiff.
3. It is contended by the plaintiff that, she is the absolute owner and in possession of the suit schedule properties, during the month of March, 2006, the plaintiff came to know that the defendant No.2 has created a document of sale bearing document No.138/1992-93 dated 21.04.1992, alleged to have been executed by the plaintiff in favour of the Governor, represented by defendant No.1 in respect of suit schedule properties. The said sale deed is created document and no sale consideration has passed on to the plaintiff. No title is passed on under alleged created sale deed. Therefore, plaintiff issued legal notice on 19.04.2007 calling upon the defendants to admit plaintiff's title and possession. But defendants have not issued any reply to the said notice. Therefore, plaintiff has filed the suit for the reliefs sought for.
4. The defendants have filed written statement denying the title and possession of the plaintiff over the suit properties. They also denied the allegation about sale deed is a created document and no consideration is passed on to the plaintiff. The Defendants specifically contended that plaintiff voluntarily alienated the suit schedule properties to the defendants for the purpose of Ashraya Scheme. The plaintiff has voluntarily executed the sale deed bearing document No.138/1992-93 dated 21.04.1992 and also received sale consideration of Rs.29,250/- and delivered the possession of the suit properties in favour of the defendants, and from 1993- 94, RTC's standing in the name of defendants. The defendant No.2 handed over the possession of the suit schedule properties to the Taluka Pancnayat, Deodurga to form plots and to distribute the same to the houseless persons. The Executive Officer Taluka Panchayat Deodurga after taking possession of the suit lands had distributed the plots to different houseless persons. The said persons are in possession of the suit schedule land and the said persons are necessary parties. The suit is not maintainable. Therefore, sought for dismissal of the suit.
5. Based on the above pleadings of the parties, the Trial Court framed the following issues:
1. Whether the plaintiff proves that plaintiff is the absolute owner of the suit schedule properties?
2. Whether the plaintiff proves that plaintiff has not executed the sale deed bearing No.138/1992-93 and further proves that said sale deed is a concocted and fictitious and the same is created by defendant No.2 herein as contended in the plaint?
3. Whether the plaintiff proves that plaintiff is in actual, lawful possession over the suit schedule properties as on date of filing of the suit?
4. Whether the suit is barred by the law of limitation?
5. Whether the suit is bad for non-joinder of necessary parties?
6. Whether the plaintiff is entitled for relief's claimed?
7. What order or decree?
6. In order to establish the case of the plaintiff, the plaintiff examined herself as PW.1 and three witnesses as PW.2 to 4 and got marked documents as Exs.P1 to P6. The defendants have examined DW.1 and 2 and got marked documents as Exs.D1 to D3.
7. The Trial Court considering the oral and documentary evidence on record, recorded a finding that the plaintiff failed to prove that she is the absolute owner of the suit schedule properties. She further failed to prove that she has not executed the sale deed in favour of defendants. She further failed to prove that, sale deed is concocted and fictitious and same is created by defendant No.2. She further failed to prove that she is in actual lawful possession over the suit schedule properties, as on the date of filing of the suit. She further failed to prove that she is entitled for relief's claimed. Accordingly, the Trial Court by the impugned judgment and decree dated 08.06.2010 dismissed the suit of the plaintiff.
8. Aggrieved by the said judgment and decree of the Trial Court, the plaintiff filed an appeal in R.A.86/2010 before the Prl. District Judge at Raichur, who after hearing both the parties dismissed the appeal.
9. Being aggrieved by the concurrent findings of facts recorded by the Courts below, the appellant did not deter for preferring the regular second appeal as last ditch attempt.
10. I have heard the learned counsel for the parties to the lis.
11. Sri Ashok S. Kinagi, learned counsel for the appellant vehemently contended that the impugned judgment and decree passed by the Courts below dismissing the suit is erroneous and contrary to the material on record. He would further contend that the Courts below have erred in dismissing the suit only on the ground that the houses have came up in the suit properties, when the plaintiff has not at all executed any sale deed in favour of the defendants. He further contended that both the Courts below have failed to notice that the plaintiff has not executed any sale deed in favour of the defendants nor received any sale consideration. The Courts below while dismissing the suit have not considered the evidence of PWs.2 and 3 who categorically stated on oath that the plaintiff has not executed the registered sale deed in favour of the defendants. Therefore, he sought to set aside the judgment and decree passed by the Courts below by allowing the second appeal.
12. Per contra, Smt.Arati Patil, learned High Court Government Pleader for the respondents sought to justify the impugned judgment and decree passed by the Courts below and vehemently contended that the plaintiff having executed the sale deed and having delivered the possession and having received the sale consideration on 21.04.1992. It is not open for her to file a suit for declaration of sale deed dated 21.04.1992 pertaining to the suit land is not binding on her. She further contended that in pursuance of the sale deed executed by the plaintiff, the land was handed over to Taluka Panchayat, Deodurga for formation of sites and to distribute them to the houseless persons under the Asharaya Scheme and the houseless persons have already constructed their houses in the suit land. The said persons are necessary parties and the plaintiff has not impleaded them as parties. Both the Courts below concurrently held that the plaintiff has failed to prove her ownership and question of granting injunction does not arise. Therefore, she sought to dismiss the second appeal.
13. Having heard the learned counsel for the parties, it is not in dispute that originally the plaintiff was the owner of the suit properties in question. It is also not in dispute that the plaintiff has executed the registered sale deed in favour of the defendants on 21.04.1992 and delivered the possession after receiving sale consideration of Rs.29,250/-. After the registered sale deed, the authorities have acted on the sale deed and entered the name of the defendants in the RTC for the year 1993-1994. The plaintiff has not challenged the said RTC before the Revenue Appellate Authority. It is also not in dispute that the plaintiff except stating in the plaint that he has not executed any sale deed and the sale deed dated 21.04.1992 is created by the defendants, has not denied the signature on the sale deed as per Ex.P9.
14. It is specific case of the defendants in the written statement that after the sale deed executed by the plaintiff as per Ex.P9 on 21.04.1992, the suit property was handed over to Taluka Panchayat. In turn, the Taluka Panchayat has formed sites and distributed the same to the landless persons and they have already constructed the houses. In spite of the same, the plaintiff has not impleaded them as parties to the proceedings, who are necessary parties. The suit is not maintainable for non-joinder of necessary parties. It is also not in dispute that after lapse of 13 years, the suit came to be filed for declaration of title stating that the plaintiff is the owner of the suit properties and the sale deed dated 21.04.1992 is null and void and is not binding on her. If once the plaintiff executed the registered sale deed or otherwise, the only course left open to the plaintiff is to file a suit for cancellation of sale deed as contemplated under Section 31 of the Specific Relief Act, which reads as under:
"31. When cancellation may be ordered - (1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
(2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation."
15. In view of the above, the very prayer sought by the plaintiff to declare that she is the owner of the suit properties and sale deed dated 21.04.1992 is null and void was not maintainable. When the plaintiff executed the sale deed in favour of the defendants after receipt of consideration of Rs.29,250/- and delivered the possession, the very suit filed by the plaintiff is not maintainable. The Trial Court considering the evidence of the plaintiff, defendants, material documents Exs.P1 to P.14 and Exs.D1 to D8, recorded a finding that the plaintiff failed to prove that she is the owner in possession of the suit properties as on the date of the suit. The Trial Court further recorded a finding that DWs.1 and 2 are public servants and have categorically stated that the plaintiff has executed the sale deed in favour of the Government and received sale consideration and there is no contra material to disbelieve the evidence of DWs.1 and 2. The Advocate for the plaintiff argued that DWs.1 and 2 have no personnel knowledge about the transaction and their evidence cannot be believed. Ex.P9 is a registered sale deed and presumption has to be drawn in favour of the document regarding its execution by the plaintiff. The plaintiff has failed to produce the cogent evidence to rebut the said presumption. The documentary evidence i.e., sale deed will prevail upon the oral evidence of the plaintiff. The plaintiff has contended that no consideration was paid to her. It is pertinent to note that in Ex.P9, the plaintiff admitted about receipt of sale consideration. Therefore, the contention of the plaintiff cannot be accepted. The Trial Court further recorded a finding that in the year 1993-94, the suit properties were handed over to the Taluka Panchayat, Deodurga. In turn, Taluka Panchayat formed the plots and distributed the same to the landless persons and the plaintiff in her cross-examination admitted that houses are built in the suit properties and people are residing in the said houses. In the light of the said admission, it is clear that the people are residing in the suit schedule properties and in the absence of said persons, the suit cannot be adjudicated effectively. The suit filed by the plaintiff is bad for non-joinder of necessary parties.
16. On re-appreciation of the entire material on record, the lower appellate Court framed the points as contemplated under Order 41 Rule 31 of CPC and held that the contention of the plaintiff that sale consideration was not paid cannot accepted. Because, the plaintiff knowing that sites were formed in her lands filed the suit and accordingly dismissed the appeal.
17. In view of the registered sale deed
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executed by the plaintiff in favour of the defendants and the plaintiff has not denied the signature on the sale deed, the presumption has to be drawn in favour of the defendants under the provisions of Sections 91 and 92 of the Evidence Act. Any oral assertion made cannot be accepted unless the registered sale deed is cancelled by the competent Court in accordance with law. 18. The material on record clearly depicts that as per Ex.P9, the plaintiff has executed the sale deed after receipt of sale consideration and delivered the possession to the defendants. After possession, the defendants have formed the plots and distributed the same to landless persons and they have constructed the house and residing there as admitted by the plaintiff in her cross-examination. Once the sale deed was admitted and possession was delivered, only course open for the plaintiff is to file a suit for cancellation of sale deed. Both the Courts below concurrently held that the plaintiff failed to prove her title and the sale deed dated 21.04.1992 is binding on her. The appellant has not made out any substantial question of law in the present appeal to interfere with the impugned judgment and decree of the Courts below by exercising the power of this Court under the provisions of Section 100 of the Civil Procedure Code. Accordingly, the appeal is dismissed. The learned HCGP is permitted to file memo of appearance for the respondents.