1 IN ThE HIGH COURT OF KARNATAKA CiRCUIT BENCH AT DHARWAD DATED THIS THE i2” DAY OF AUGUST, 2011 PRESENT THE HON’BLE MR.JUSTICE V.G.SABHAHIT AND THE HON’BLE MR JUSTICE B.MANOHAR 8EGULAR FIRST &PE&. No.766I20Q BETWEEN 1. SUNANDA, W/O. ANANDA RAO PATIL, AGED ABOUT 59 YEARS, RIO KALKUNDRI TALUK, CHANDAGAD DIST: KOLHAPUR-416 014. SRI DEVIDAS, /O.DATTATPAY KURE © BHOSALE, AGED ABOU1 47 YEARS RiO. SAVKAR GALLI. KADOL1 rALLJ’( BELGAU%1 590 00. APPE LiN1C BY RI ‘c LI’ RN,A) C T ‘RI ADASHIV, ‘0 SIMKV It,\NNACFE IC ED %BO’J C’ ‘t2R’ II I..\A%. 2 S/O.SHANKAR MAYANNACHE, AGED ABOUT 47 YEARS. BOTh ARE RESIDENTS OF KADOLI TALUK, BELGAUM-590 001. 3. SHANTABAI, W/O.DATTATRAY KUTRE, AGED ABOUT 60 YEARS, RIO. SAVKAR GALU, KADOLI TALUK, BELGAUM-590 001, SINCE DEAD REPRESENTED BY HER LEGAL HEIR i.e., APPELLANTS 1 AND 2 (AMENDED VIDE ORDER DATED 02.07.2007) 4. SRI.AVINASH, Sb. GANAPATRAO AJAGAONKAR, AGED ABOUT 40 YEARS, R/O.VIVEK TILES, OPP PAl CHAMBERS POONA-BANGALORE ROAD, BELGAUM-590 001. .RESPONDENTS (BY SRI.M.G.NAGANURI, ADVOCATE FOR R-1 & R-2; R-4 SERVED; APPELLANTS ARE LRs OF DECEASED R-3) THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 18.08.2005 PASSED IN O.S.NO.28/2000 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE (SR.DN.), BELGAUM, 3 DECREEING THE SUIT FOR DECLARATION AND INJUNCTION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGEMENT AND COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, SABHAHIT.J., DELIVERED ThE FOLLOWING: JUDGEMENT This appeal is flied by defendants 2 and 3 In O.S. No.28/2000 on the file of the I Addi. Civil Judge (Sr. Dn.), Belgaum, being aggrieved by the judgement and decree dated 18.08.2005, wherein the suit filed by the plaintiffs - respondents 1 and 2 herein is decreed by declaring that the plaintiffs are the absolute owners of the suit property and that the decree dated 09.12.1999 passed by the Principal Civil Judge (Jr. Dn.), Belgaum, in O.S. No.430/1994 is not binding on the plaintiffs and restraining the defendants from interfering with the plaintiffs’ peaceful possession and enjoyment of the suit property. 4 2 The material facts & the case leading up to this appeal with reference to the rank of the parties before the trial Court are as follows. 2.1 The Suit — O.S. No.28/2000 was flied by plaintiffs I and 2 (respondents i and 2 herein) on 31.01.2000 averring that the suit property Is an agricultural land bearing R.S. No.109/28 measurIng 05 Acres situate within the limits of Village Kadoll, Selgaum District, and since the entire survey number Is the subject matter of the suit the boundaries have not been given The plaintiffs are MI brothers The plaintiffs are the absouteownen nactua possession fthe it pety Plantiff Iso a Pu hased aif ,hae Afard aste on a ff1 t inas—d e a a t st 0 3 t qh* at tr c 9 5 property and their names have been duly recorded in the record of rights of the suit property as per Mutation Entry No. 7261 of Kadoh village, Belgaum District The plaintiffs are paying the land revenue to the Government in respect of the suit property, They have grown sugarcane in the suit property and have dug a borewell in it and fixed submersible pump set to the said borewell. The plaintiffs have sent the sugarcane to the sugar factory. 2 1 1 The suit property was earlier owned by Dattatray Devappa Kutre @ Bhosale He sold the same to defendant No 4 through a registered sale deed dated 21 04 1964 for a onsideration of Rs 1 500/ 3nd put him n actual possession f the uit property The ame f r fendant N me o cc d ily ci toted n he ecord ght f he t op rt or tatto P tr a a Bg it e per h sband C o nof 6 property. The suit property came to be vested in the Government under Section 44 of the Karnataka Land Reforms (Amendment) Act, 1974 on 01.03.1974 sInce the same was cultivated by the husband of defendant No.5 as a tenant and wherefore, the name of the tenant was entered in the record of rights in respect of the suit property and name of the owner of the land was entered as State of Karnataka since the land is vested with the Government. The husband of defendant No.5 submitted an application in Form No.7 to the Land Tribunal, Belgaum, on 23.12.1974 seekIng occupancy rights In respect of the suit property as well as land bearing R.S. No.404/5 of Kadoll village. 2.1.2 The Land Tribunal, after enquiry, by order dated 25.09.1976, granted occupancy rights In favour of the husband of defendant No.5 and the said order of the Land Tribunal has become final and the same is binding on defendant No.4, who was party to the said proceedings and also defendant No.5 , who was successor in-interest of her deceased husband. Defendant No.4 J 7 submitted an application before the Tahsildar with a request to calculate the occupancy price and to pay the same. The husband of defendant No.5 — Sri Gurunath Marappa Kutre died Intestate on 04.09.1994. Defendant No.5 is the sole legal heir of her deceased husband Sri Gurunath Kutre. Therefore, she succeeded to the suit property and became the absolute owner of the same. After the death of her husband, defendant No.5 got her name entered in the record of rights of the suit property as per Mutation Entry No.6956 of Kadoli village. Thus, defendant No.5 was the absolute owner and in actual possession of the suit property till she sold the same to the plaintiffs. The suit property was sold by defendant No.5 for legal necessity. However, there was an entry In the ‘other rights’ column of the record of rights of the suit property with regard to restriction on alienation for 15 years in view of the grant of occupancy rights in favour of her husband by the Land Tribunal, Beigaum. Therefore, defendant No.5 submitted an application on 27.05.1997 to the Tahsildar, Belgaum, to delete the condition with regard to bar on alienation for 15 years on the ground that 15 8 ,411 years period from the date of certificate under Section 55 of the Karnataka Land Reforms Act, 1961 (hereinafter referred to as ‘the Act’) had expired. The Tahsiidar, by order dated 28.05.1997, dIrected the Village Accountant to delete the clause pertaining to restriction on alienation for 15 years mentioned in the ‘other rights’ column of the record of rights of the suit property and the Viiiage Accountant deleted the same as per Mutation Entry No.7080 of Kadoil village on 30.05. 1997, which was certified by the Revenue Inspector, Kakati on 02.06.1997. Thereafter, defendant No.5 has sold the suit property in favour of the plaintiffs. 2.1.3 Defendants 1 to 3, who were plaintiffs in O.S. No.430/1994 flied against defendant No.4 and the husband of defendant No.5 for declaration and possession before the Pd. Civil Judge (Jr. Dn.), Beigaum, knew very weil about the purchase of the suit property by the present plaintiffs and also about its actual possession, use and enjoyment. However, they did not purposely Implead the present plaintiffs as parties to the said suit only with an 9 intention to obtain a collusive decree and get the same executed. The parties to the suit had produced the documents pertaining to the proceedings before the Land Tribunal, Belgaum, In No.Kadoll SR 186. 2.1.4 Defendant No.5 in her written statement filed In respect of the suit — O.S. No.430/1994 had taken up the contention with regard to bar of suit under Section 132 of the Act and the said suit was barred by time. Defendants 1 to 3 hereIn, who were plaintiffs In the said suit, which was filed about 12 years next before filing of the present suit, themselves did not claim to be In actual possession of the suit property. Therefore, the suit was barred by lImItation with regard to the relief of declaration as well as possession. The Principal Civil Judge (Jr. Dn.,), Belgaum, without considering the said aspect of the matter, has decreed the suit of the present defendants 1 to 3 in a mechanical manner. It was also averred that the suit was not maintainable in view of the provisions of Section 132(2) of the Act. Defendants 1 to 3 did not have any right, title or interest over the suit property since their 4* 10 predecessor had sold the same to defendant No.4 under registered sale deed dated 21.04.1964 and wherefore, the judgement and decree passed by the Principal Civil Judge (Jr. Dn. ), Belgaum, is nullity in the eye of law being passed without Jurisdiction. The plaintiffs in the present suit, being not parties to the said suit, are not be bound by such a decree. 2.1.5 Defendants 1 to 3, after obtaining the decree behind the back of the plaintiffs, sued out the execution in E.P. No.24/2000 before the Court of the Principal Clvii Judge (Jr. Dn.), Beigaum. The plaintiffs on coming to know about the said decree obtained by defendants 1 to 3 appeared in the said execution petition and filed application under Order XXI Rule 97 of CPC., and the same is pending consideration. However, the plaintiffs apprehended danger of dispossession at the hands of the present defendants 1 to 3 by executing the decree passed In O.S. No.430/1994 and wherefore, the suit was filed for declaration that the piaintiffs are the owners of the suit property and the decree passed in OS. No.430/1994 11 4. passed by the Principal Clvii Judge (Jr. Dn.), Belgaum, dated 09.12.1999 is not binding on the plaintiffs and to restrain defendants or any body claiming through or under them from disturbing the peaceful possession, use and enjoyment of the suit property either by executing the decree passed in O.S. No.430/1999 dated 09.12.1999 or by any other mode and for grant of costs of the suit. 2.2 The suit was resisted by the defendants 1 to 4. Defendants 1 to 4 appeared through their respective counsels and defendant No.5 did not appear before the trial Court despite service of summons. Defendants 1 and 3 flied the written statement. On behalf of defendant No.2, his counsel filed a memo adopting the written statement flied by defendants 1 and 3. Defendant No.4 did not file any written statement. 2.3 In the written statement filed by defendants 1 and 3, the averment made in the plaint that the plaintiffs have become the absolute owners of the suit property is denied and it is averred that the suit - O.S. No.430/1994 12 I filed by defendants 1 to 3 against defendant No.4 and another for declaration that they are the owners of the suit land and for possession with past and future mesne profits has been decreed in accordance with law and the plaintiffs are bound by the decree passed In 0.5. No.430/1994 and they have no locus standi to question the validity of the said decree. The averment made in the plaint that the plaintiffs were put In possession of the suit property was denied. It Is averred that the suit property was owned by Dattatraya Devappa Bhosale @ Kutre and he was personally cultIvating the land till his death on 19.09.1971. The averment made in the plaint that the suit - 0.5. No.430/1994 was barred by time and no suit was maintainable in view of the provisions of Section 132 of the Act, was denied as false. It Is averred that defendants 1 to 3 are entitled to execute the decree obtained by them In 0.S. No.430/1994 and wherefore, Execution petItion No.24/2000 Is filed. There Is no cause of action for the present suit and wherefore, the same is liable to be dismissed. A 13 4 2.4 Having regard to the above said pleadings, the following issues were framed by the trial Court: “1. Whether plaintiffs prove that they have purchased the suit property from Defendant No.5 through two separate registered sale deeds dated 3.11.1998 for total sale consideration of Rs.3,70,000/- and that they are in actual physical possession as absolute owners as contended In pare 2 of the plaint? 2. Whether the Plaintiffs prove that Defendant No.5 was the absolute owner and actual possession of the suit property till she sold the suit property to the Plaintiffs as alleged In the plaint? 3. Whether the Plaintiffs prove that the judgment and decree passed in O.S.No.430/1994 on the file Principai Civil Judge (Jr.Dn.), Beigaum is not binding on them as alleged in the Plaint? 4. Whether the Plaintiffs prove that the alleged Interference by the Defendants in Uy 14 / their peaceful possession and enjoyment of the suit property as alleged? 5. For what relief the parties are entitled? 6. What decreeT’ On behalf of the piaintiffsp plaintiff No.2 was examined as PW1 and the plaintiffs also examined PWs.2 and 3 and got marked Exs.P1 to P30. On behalf of the defendants, no oral or documentary evidence was adduced. 2.5 The trial Court, having considered the contentions of the counsel for the contesting parties and appreciating the oral and documentary evidence produced by the plaintiffs, by judgement and decree dated 18.08.2005, answered the above issues as follows: “1. Affirmative. 2. Affirmative. 3. Affirmative. 4. Affirmative. 5 and 6: As per final order” 15 Being aggrieved by the said judgernent and decree, defendants 2 and 3 in the suit OS. No.28/2000 have preferred this appeal. 3. We have heard the learned counsel appearing for the appellants and the earned counsel appearing for the contesting respondents. 4. The learned counsel appearing for the appellants (defendants 2 and 3 before the trial Court) submitted that the trial Court was not justified in decreeing the suit of the plaintiffs as OS. No.430/1994 had been duly decreed and the suit property was purchased by the plaintiffs during the pendency of the said suit. The TaintifPs, who claim to be the purchasers of the property, which is the suhiect matter of suit - OS. No430/1994 are bound by the decree passed in the said suit. The trial Court could not tave granted the decree in favour o...f the plaintiffs in the present suit in view of the decree passed in the suit OS Nm430/1994. He further submitted that the trial Court has rc,t •pooriy appreciated the oral and 16 documentary evidence on record and the plaintiffs are not in possession of the suit property. The trial Court was not Justified in declaring the title of the plaintiffs and directing the defendants to hand over possession of the suit property to the plaintiffs. 5. On the other hand, the learned counsel appearing for the respondents — (plaintiffs before the trial Court) submitted that the sale deeds executed by defendant No.5 In favour of the plaIntIffs has been proved In accordance with law. The plaintiffs are the absolute owners of the suit property and wherefore, they are entitled to possessIon of the same. The decree passed In O.S. No.430/1994 was obtained by fraud by suppressIng the fact of sale in favour of the plaintiffs and the said decree Is a collusive decree and wherefore, not binding upon the plaintiffs. The learned counsel, in support of his contention, has relied upon the decisIon of the Ho& ble Supreme Court In S.P. CHENGALVARAYA NAIDU (DEAD) BY LRs., Vs. JAGANNATH (DEAD) BY LRs., AND OTHERS (AIR 1994 SC 853), wherein It is held that In a proceeding 17 before the Court, withholding of vital document relevant to litigation by the litigant is fraud on Court and guilty party Is liable to be thrown out at any stage and litigant obtaining preliminary decree for partition of property without mentioning at trial as to his having executed before filing of suit, release deed In respect of property in favour of his employer, is vitiated by fraud. 6. Having regard to the contentions urged by the learned counsel appearing for the parties, the points that arise for our determination In this appeal are :- 1. Whether the finding of the trial Court that the plaintiffs have proved that they are the owners of the suit property and are in actual possession of the same, is justified or calls for Interference in this appeal? 2. Whether the finding of the trial Court that the defendants have failed to prove that the suit Is not maintainable and is hit by the provisions of the Kamataka Land Reforms Act and for non-joinder of necessary parties, is 18 justified or calls for interference in this appeal? 3. Whether the finding of the trial Court on Issue No.3 that the judgement and decree passed in O.S. No.430/1994 on the file of the PH. Clvii Judge (Jr. Dn.), Belgaum, Is not binding on them is justified or calls for interference in this appeal? 4. Whether the impugned judgement and decree passed by the trial Court calls for interference in this appeal? 5. What order? We answer the above points for determination as follows: Point Nos.1 to 3 : The finding of the trial Court Is justified and does not call for interference In this appeal. Point No.4 : The Impugned judgement and decree passed by the trIal Court Is justified. Ut 19 Point No.5 : As per the final order, for the following: REASONS a 7. POINTS 1 tO5 : All the points are taken up for consideration together since they are interconnected and to avoid repetition. 8. The plaintiffs, in order to substantiate their contention that they are the absolute ownqrs of the suit property and are entitled to possession of the same, have adduced oral and documentary evidence. The defendants have not chosen to lead any oral or documentary evidence before the trial Court. 9. On behalf of the plaintiffs, plaintiff No.2 — Basavant Shankar Mayanache is examined as PW.1 and he has filed affidavit in lieu of his examination-In-chief, whereIn, he has reiterated the averments made In the ‘Pt 20 d plaint. He has got marked the documents Exs.P1 to P30(d). 9.1 It is elicited in the cross-examination of PW.1 that It is true that the suit property is situate at Kadoli village. The suit property consists of 5 Acres. He decided to purchase the suit property on 03.11.1998. He has not enquired as to whether any litigation was pending before the Court prior to purchase of the suit property. The sale deeds were executed on 03.11.1998. One Rajesh Baiakrishna Kekare wrote the sale deeds. The entire sale consideration was paid in the presence of the Sub- Registrar in cash. Before writing the sale deeds, extract of the record of rights was shown to the bond writer. The extract of the record of rights was shown to the bond writer. Nobody was in a hurry to complete the sale transaction. It is true that they had flied an application in Execution proceedings opposing the delivery of possession of the suit land to defendants 1 to 3 and he does not remember the date on which they flied the said application in execution proceedings. It is further elicited that the suit ¼ 21 was filed by defendants 1 to 3 agaInst defendants 4 and 5 In O.S. No.430/1994. Gurunath Kutre died on 04.09.1994. It is true that after the death of Gurunath, his wife was brought on record in. the said suit. It is true that the wife of Gurunath Kutre appeared through her counsel — A.M. Potdar. It is true that the said Sundarabai, wife of Gurunath had filed her written statement In the said suit. It is not true to state that they had raised the same contentions in the suit, which were raised by the said Sundarabai. It is true that she had also raIsed the contention that the suit was hit by the provisions of the Act. He does not know If the plaintiffs in the said suit led the orai and documentary evidence. In that suit, it was declared that the present defendants 1 to 3 are the owners and entitled for possession of the suit iands. It Is true that he had not filed any application praying to implead him as one of the parties in the said suit. It is not true to say that they were aware that the suit Was pending at the time of purchasing the suit lands. It is not true that assuring defendant No.5 that they would take care in the hearing, they asked her to sign the sale deeds. It Is not true to say 22 If that they have not paid any money to defendant No.5 either before or at the time of execution of the sale deeds. It is not true to say that he was deposing falsely that they have paid the sale consideration to defendant No.5 before the Sub-Registrar. The stamp vendor Kekare introduced defendant No.5 to Sundarabai. The original sale deeds were in the Bank and he has brought the same on the date of his cross-examination (witness cross-examined on 11.01.2005). Tukaram Yailurkar and Devendra Mohite are two attesting witnesses to both the sale deeds. The said witnesses had also accompanied the Sub-Registrar. They had signed the sale deeds In the Sub-Registrar’ s office. He has denied the suggestion that they have obtained false sale deeds executed by Sundarabal since there was suit pending in the Court. He has denied the suggestion that defendants 1 to 3 are the owners of the suit iand. Defendant No.4 Is fully aware of the suit land and he also knows as to who Is the owner of the land and as to who has been cultIvating the same. There was no dispute between defendant No.4 and Gurunath Kutre. It is further elicited that he did not make any enquiry with defendant 23 SW No.4 before entering Into the sale transaction. It Is not true to say that defendant No.5 learnt about the decision in O.S. No.430/1994 and informed hIm. He came to know about the decision in the said suit from talk in the village. Even thereafter, he did not go to defendant No.5 to make enquiry regarding the said suit. In the said sale deeds, it is mentioned that in the event of any dispute, the vendor should attend to the same. They did not Issue any notice to defendant No.5 regarding the dispute arising out of the suit — O.S. No.430/1994. After filing of the suit, he has gone to defendant No.5 and enquired with her and collected the Information. It is elicited that he does not know if the relation between defendants 1 to 3 and 5 are not cordial ever since the filing of the suit in O.S. No.430/1994. It is not true to say that ever since the institution of the suit by defendants 1 to 3 agaInst the deceased Gurunath, discussion was going on in Kadoli village. It Is true that defendants 1 to 3 are bhaubands of Gurunath Kutre and that Gurunath Kutre had contested the election to Taluka Panchayat and Grama Panchayat and some time, he was elected in the said elections. 6’ 24 9.2 PW.1 has further deposed in his examination In-chief that Ex.P29 is the original sale deed of Ex.P19. Ex.P29(a) is Its translation. Ex.P30 Is the original sale deed of Ex.P20. Ex.P.30(a) Is its translation and It Is In his name. He has Identified the signature of the vendor and - attesting witnesses and has stated that Exs.P29 and P30 have been executed on one and the same day. Both the said sale deeds have been written by one and the same bond-writer simultaneously. 10. PW.2- Rajendra Balkrlshna Kekare has filed affidavit by way of examination-In-chief averring that he has written the sale deeds under which the property was conveyed to the plaintiffs. The owner of the land - Sundarabal Kutre gave him Instructions and relevant documents to write the sale deeds. According to the said instructions, he prepared the saie deeds and read over the same to the said Sundarabal and the attesting witnesses. She admitted the contents of the same as