IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 25 TH DAY OF JULY, 2011 BEFORE THE HON’BLE MR. JUSTICE JAWAD RAHIM RSA No.1505 OF 2008 BETWEEN: NARAYANAPPA, S/O MUNEPPA © DAROJA, AGED ABOUT 42 YEARS, R/A PAREHOSHA VILLAGE, HUTHUR HOBLI,KOLAR TALUK * 563 101 APPELLANT (BY SRI K.RAGHAVENDRA RAO, ADV.,) AND: SMT.MUNEMMA, W/O MUNIYAPPA, AGED ABOUT 43 YEARS, R/A MARJENAHALLI VILLAGE, KOLAR TALUK - 563 101 RESPONDENT (BY SRI C.NAGESH & SRI K.P.MANJUNATH, ADVS.,) RSA FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED:19.04.2008 PASSED IN R.A.NO 320/2007 ON THE FILE OF THE I ADDL. CIVIL JUDGE, (SR.DN) KOLAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 20-11- 2007 PASSED IN O.S.NO.286/2005 ON THE FILE OF THE ADDL. CIVIL JUDGE, (JR.DN), KOLAR. THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:- ORDER This second appeal is by the defendant No.1 — Narayanappa against the Judgment in RA No. 320/2007 dated 19-04-2008 on the file of the I AddI. Civil Judge (Sr. Dvn.), Kolar, confirming the Judgment and decree in OS No. 286/2005 on the file of the Civil Judge (Jr. Dvn.), Kolar, in favour of the respondent. 2. The following substantial question of law is framed for consideration: “Whether in the facts and circumstances of the case, the courts below were justified in setting aside the judgment and decree passed in O.S No.193/1999 and consequently declaring the deed of sale dated 12.04.2005 in favour of the appellant as null and void?” 3. Heard the learned senior counsel Mr. Raghavendra Rao and the learned counsel for respondent, Sri K.P.Manjunath. Perused records in supplementation thereto which reveals:. a) Munemma-respondent herein filed a suit in OS No. 286/2005 seeking a decree to declare she is the absolute owner in possession of the property described in the schedule to the plaint having acquired it vide a deed of sale dated 25.3.1989 for valuable consideration from the 2 respondent—Kurati Venkatappa and also to declare that the judgment and decree in 0.S.193/99 obtained by the appellant-Narayanappa against 2 respondent-Kurati Venkatappa was not binding on her. b) Appellant contested the suit through his written statement denying all averments in the plaint, but did not aver any fact or circumstance which, according to him, substantiates his claim for a decree of specific performance granted in his favour in O.S.193/99. He also did not aver in detail the mode and manner in which he acquired right, title and interest in the schedule property against Kurati Venkatappa as also Munemma-respondent. c) Based on the material propositions in the plaint and written statement, the learned trial Judge framed the following: 4 1. Whether the plaintiff proves that she is the absolute owner of the suit schedule property in the manner as contended by her? 2. Whether the plaintiff proves that she has been in lawful possession and enjoyment of the suit schedule property as on the date of suit? 3. Whether the plaintiff proves the alleged interference of the defendants? 4. Whether the plaintiff is entitled for the relief sought for? 5. What order or decree? AddI. Issues: 1. Whether the plaintiff proves that, judgment and decree passed in O.S 193/2009 on the file of PrI. Civil Judge (Jr.Dn), Kolar is null and void and liable to be set aside?” In the enquiry that ensued, plaintiff-Munemma examined herself as PW1 and relied on 21 documents, while the appellant examined himself as DW1 and also examined a witness DW2 and placed reliance on 11 documents. d) The learned trial Judge analyzing the evidence on record, opined plaintiff’s evidence outweighs the defence and decreed the suit of the plaintiff—Munemma declaring her to be the absolute owner of the property described in the schedule having acquired it in the manner known to law, n and also declaring that the judgment and decree in O.S,193/99 obtained by the appellant was not binding on her. Assailing it he was in regular appeal, R.A.320/2007 which has since been dismissed by the appellate judge confirming the judgment of the trial court. Against the concurrent finding of the courts below, appellant is in second appeal. 4. Learned counsel, Sri Raghavendra Rao for the appellant would contend appellant-Narayanappa was admittedly owner of the property in question, but being in need of money he had obtained loan from Korati Venkatappa and on his insistence, executed a deed of sale dated 1.1.1981 which in fact was only a deed of mortgage. He submits, Korati Venkatappa acknowledging the deed dated 1.1.1981 was only a mortgage, executed an agreement of re-conveyance and filed a suit in 0.5.193/99 seeking specific performance of the agreement of re conveyance against Korati Venkatappa who did not contest the proceeding. Consequently the suit in 0.S.193/99 was decreed granting decree of specific performance in favour of the appellant-Narayanappa and the decree was put in 6 execution in E.P.6/OO. In the said proceedings, the court executed the decree of absolute sale in favour of the appellant in respect of the entire schedule property and thus he is the absolute owner. He submits, defendant in the suit Korati Venkatappa did not question it in any appeal action and hence, the judgment in O.S.193/99 had attained finality. Besides, he would submit respondent-Munemma filed 0.5.286/05 more than 3 years after the passing of the judgment in O.S.193/99 and despite her knowledge of pendency of that suit and therefore, the trial court could not have held the judgment in O.S.193/99 in favour of the appellant was not binding her and the trial court further erred in declaring the sale deed executed in favour of the appellant in pursuance of and in terms of the decree in 0.5.193/99 as null and void. He, therefore, seeks to set aside the judgment and decree of the trial court and appellate court and to dismiss the suit of the respondent- plaintiff. 5. Learned counsel for the respondent has supported the impugned judgments and in negation of the grounds urged by Sri Raghavendra Rao, has pointed out that the property bearing Survey No.145 measured more than 4 7 acres out of which the appellant and his brothers and father had sold 1 acre 20 guntas in favour of Koratl Venkatappa by way of an absolute deed of sale which was for valuable consideration, and it was not a mortgage transaction. He submits on 25.3.1989, Korati Venkatappa being the absolute owner, having purchased the property under Ex.D1, sold It to the respondent and therefore he had no subsIsting Interest In the schedule property on 1.6.1989, the date of alleged agreement for re-conveyance produced In the trial court as Ex.D4. He further submits appellant was aware of the sale transaction In favour of the respondent, but did not bring her into the party array In O.S.193/99 to stage manage the decree for specific performance In respect of the schedule property. He submits the decree In O.S.193/99 Is the result of collusion between the appellant and Korati Venkatappa. and therefore it was not binding on the respondent. 6. Learned counsel has also referred to O.S.175/99 fIled by the respondent seeking an order of Injunction against the appellant as also others claiming to be the absolute owner In which suit the appellant had entered appearance and filed written statement merely denying the 8 aflegations made by her, without disclosing the alleged agreement of re-conveyance dated 1.6.1989. He would submit the suit in O.S.175/99 was decreed against the appellant and it is therefore evident that the appellant had no semblance of right, title and interest in the schedule property but had obtained the decree in O.S.193/99 suppressing material evidence which the trial court rightly set aside. 7. Keeping in mind what is urged by both sides, I have examined the records from which it is quite evident that the genesis of respondents claim of ownership in respect of the schedule property is the sale deed dated 25.3.1989 executed in her favour by Korati Venkatappa. She also produced revenue records showing she obtained possession and mutation extracts at Ex.P1O and Exs.P11 to P13 being RTC extracts. Ex.P9 is the sale deed executed by the 2nd defendant in her favour. She has also produced M.R.87/1989-90 showing that for the year 1991-92 and for subsequent years her name is entered as occupier and cultivator of the land. Exs.P16 to P19 are subsequent extracts of RTC showing her name. 9 8. It is further noticed appellant with his brothers and father had executed the sale deed in favour of the 2nd defendant as early as on 1.1.1981 and had put Korati Venkatappa in possession thereof. Appellant did not question the said transaction dated 1.1.1981 in any civil action, nor did his brothers or father challenge it. After 18 years, appellant flied O.S.193/99 for enforcement of the aiieged agreement of re-conveyance dated 1.6.1989 (Ex.D4) on the plea Korati Venkatesh had agreed to re convey the property. Neediess to say that re-conveyance wiii be permissible only If the first transaction is to be annulled and for reversal of title. In O.S.193/99 flied by him for enforcement of the specific performance of the alleged agreement of re-conveyance, except him, none of his brothers or father were parties. Even Korati Venkatappa remained ex pafle and did not contest the proceedings. 9. It is also material to note before the appellant filed O.S.193/99, respondent-Munemma had flied O.S.175/99 seeking an order of injunction against him, his brothers and father on the specific assertion that she is the absolute owner in possession of the property having acquired it from Korati Venkatappa by a vaiid saie deed dated 25.3.1989. 82 I () Thus she had disclosed her ownership and mode of its acquisition. The suit was decreed in favour of Munemma by judgment dated 25.2.2004 vide Ex.P1 against which appellant filed R.A.55/04 which was a failure as seen from the judgment produced at Ex.P5. Thereafter appellant did not take any further action and consequently the judgment in O.S.175/99 dated 25.2.2004 has reached finality. The competent civil court analyzing the material evidence produced in the suit by the parties, affirmed the claim of the respondent that she is the lawful owner of the property in question and restrained the appellant from interfering with her possession. 10. If as alleged, there was an agreement of re conveyance on 1.6.1989n by Korati Venkatappa in favour of the appellant, such agreement was unenforceable against him sine he had already sold the property to the respondent on 25.3.1989 and had no subsisting interest as on 1.6.1989. In fact the finding of the trial court in 0.5.175/99 substantiates the serious contest between the parties and a logical conclusion is reached by the court based on material evidence. Paragraph 12 of the said judgment reveals in the pleadings, evidence led by the parties and answers ii given by the appellant fully support the case of the respondent-plaintIff and negates all claims of the appellant. Ex.D1-sale deed dated 1.1.1981 In favour of Koratl Venkatappa by the appellant and his brothers fully establIshes none of them had subsisting interest after 1.1.1981 and Koratl Venkatappa became the absolute owner thereof and the sale deed executed by him on 25.3.1989 In favour of the respondent was valid. In the circumstances, the decree passed in O.S.193/99 was certainly a result of fraud and collusion between the appellant and Koratl Venkatappa and it was obtained suppressing material facts and also without impleading the respondent-Munemma who had subsisting right of ownership over the property. Consequently such a decree was not binding on her. 11. The trial court has discussed in detail the material evidence and its conclusion that the decree in O.S.193/99 was not binding on Munemma calls for no interference. Consequent to such finding, the sale deed obtained by the appellant in terms of the decree in O.S.193/99 was certainly to be declared as null and void and not binding on the respondent. The learned trial judge and the learned 12 appellate judge have examined the evidence on record in the correct perspective and have rightly reached the conclusion to grant the decree as sought for by the respondent in O.S.286/05. Neither the judgment decree passed by the trial court nor the appellate court need any interference. 12. In the result the question of law is answered against the appellant and in favour of the respondent. The appeal is dismissed with costs throughout. Sd/ TrTmr’ J LJJ_1 VK/vg h *