RSA/1130/2012 of PREMAVVA @ PRAMEELAMMA Vs T JAYANNA S/O J GUNDAPPA on 7 August 2026

JUDGEMENT

& DECREE DTD 22.11.2011 PASSED IN R.A.NO.287/2002 ON THE FILE OF SENIOR CIVIL JUDGE, HARIHAR, DISMISSING THE APPEAL AND CONFIRMING THE

JUDGEMENT

AND DECREE DTD 10.8.2000 PASSED IN O.S.NO.109/1986 ON THE FILE OF ADDITIONAL CIVIL JUDGE (JR.DN.), HARIHAR AND ETC.

THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

ORAL JUDGMENT

Heard Sri. Hareesh Bhandary T., learned Counsel for the appellants and Sri. Sanath Kumar Shetty K., learned Counsel along with Sri. Nikhil K.N., learned Counsel for respondent No.2.

2. This regular second appeal is filed praying this Court to set aside the judgment and decree dated 22.11.2011 passed by the First Appellate Court in R.A.No.287/2002 and the judgment and decree dated 10.08.2000 passed by the Trial Court in O.S.No.109/1986 in dismissing the suit for the relief of cancellation of the sale deed dated 18.02.1970 as null and void.

3. The factual matrix of case of the plaintiffs that the plaintiffs have filed a suit in O.S.No.109/1986 for the relief of cancellation of sale deed dated 18.02.1970 as null and void on the ground that the same was obtained fraudulently at the hands of plaintiff No.2 and also

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contended that plaintiffs are the full brothers and they are residing separately. The suit schedule lands are the ancestral properties of the plaintiffs. The suit lands are not adjacent to each other, but in between the two scheduled lands there is a land bearing Sy.No.8/1P. The father of the plaintiffs had four sons and all the sons have separated each other by effecting the partition in their ancestral properties by way of a partition deed dated 08.05.1963. As per the partition deed, the suit schedule properties had fallen to the share of plaintiff No.1 and plaintiff No.1 is in possession and enjoyment of the suit schedule property. It is also alleged that defendant No.1 is a resident of Davanagere and on 18.02.1970 he has got created a document without the knowledge of plaintiff No.2 by practicing fraud on plaintiff No.2 and got entered his name in the Record of Rights. The defendants have filed a suit in O.S.No.18/1986 and the said case is pending. The sale deed is concocted one and taking the disadvantage of the illiteracy and honesty of plaintiff No.2,

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got his signature on the sale deed without explaining its contents and the said fact came to the knowledge of the plaintiffs when the suit summons pertaining to O.S.No.18/1986 are received. Hence, the plaintiffs filed the suit for cancellation of sale deed on the ground of fraud, misrepresentation and the same is obtained by undue influence.

4. The defendants have entered appearance in the said suit and filed written statement totally denying the fraud, misrepresentation and also undue influence. It is contended that sale deed was executed in the year 1970 and the plaintiffs have filed the suit seeking cancellation of the sale deed in the year 1986 after lapse of 16 years and hence, the suit is barred by law of limitation. It is further contended that the suit is imaginary one and plaintiffs No.1 and 2 colluded with each other have filed the false suit and therefore, plaintiffs are not entitled for any reliefs.

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5. The Trial Court, having considered the material placed on record had come to the conclusion that in both oral and documentary evidence the plaintiffs have failed to prove that sale deed is null and void and the same is obtained by fraud, misrepresentation and also undue influence and there is no specific pleading as contemplated under Order VI Rule 5 of CPC. There must be a specific pleading to that effect with regard to the fraud and misrepresentation. The same is not substantiated by the plaintiffs and therefore, granting relief for cancellation of the sale deed doesn't arise. Accordingly, the suit of the plaintiffs came to be dismissed .

6. The said judgment and decree was challenged before the First Appellate Court in R.A.No.287/2002. The First Appellate Court having considered the grounds raised in the appeal memo has formulated the following points for consideration:

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(i) Whether the finding of the Trial Court that the plaintiff No.1 was not the owner and in possession of the suit lands as on 18.02.1970 based on Ex.P3 is erroneous and capricious?

(ii) Whether the finding of the Trial Court that the plaintiffs not proved that the sale deed at Ex.P4 is the out come of not fraud, misrepresentation, undue influence, coercion is illegal.?

(iii) Whether the cross-objection of LRs., of respondent No.1 filed U/o 41 Rule 22 of CPC is maintainable?

(iv) Whether it requires interference of this Court?

7. The First Appellate Court also having reconsidered the material on record and taking note of the factual aspects of the case, recorded the findings, particularly in paragraph No.14 that there is a pleading in the plaint and such pleading has to be proved in accordance with law. To prove the oral partition, the plaintiffs relied upon Ex.P3 and oral evidence of PW1. Before appreciating the evidence of PW1 and Ex.P3, it is pertinent to note that as per Ex.P9, the Record of Rights of the Sy.No.8/2, measuring 10 Acres 22 Guntas was standing in the name

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of Sri.Yalappa and as per Ex.P10 Record of Rights of Survey No.7/3, totally measuring 7 Acres 31 Guntas was standing in the name of Sri.Gudappa from 1965 to 1970. Ex.P3 has been reduced into handwriting on plain paper. This deed has not been written on stamp paper and this deed has not been registered under the Registration Act, 1908. On perusal of Ex.P3 indicates that through Ex.P3 itself, the sons of Sri.Yalappa got divided all the family properties. There is no recital in Ex.P3 that there was oral partition prior to Ex.P3 and such oral partition has been reduced into writing on 18.05.1963. So the contention of the plaintiffs that there was oral partition and such oral partition was reduced into writing at Ex.P3 holds no water.

8. Further, the First Appellate Court took note of the contents of Ex.P3 both in paragraphs No.14 and 15 and also taken note that there is no recital in Ex.P3 to the effect that any portion of land in Survey No.8/2 was allotted to the share of plaintiff No.1 or plaintiff No.2 and hence, it comes to the conclusion that plaintiffs have not

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substantiated their claim. In respect of the fraud, misrepresentation and undue influence is concerned, while answering to the point No.2, the First Appellate Court had taken a note that there is no recital to the effect of fraud, misrepresentation and coercion. There is no clear pleadings and also no evidence are placed before the Court in this regard. The plaintiffs are required to establish that by giving threat to the plaintiff No.2, the sale deed was got executed by the defendant No.1, but they have failed to prove their case.

9. On reassessing both the oral and documentary evidence, the First Appellate Court comes to the conclusion that the plaintiffs failed to prove that plaintiffs were having right over the property and also taken note of the fact that the sale deed executed by plaintiff No.2 in favour of defendant No.1 was not based on fraud, coercion, misrepresentation and the same is not substantiated by producing any cogent evidence.

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10. Having heard the learned Counsels appearing for both the parties and on perusal of the material on record, this Court is of the considered opinion that the findings given by the Trial Court as well as the First Appellate Court are based on the material on record and there is no any perversity in the impugned judgement and decree, as the sale deed was of the year 1970, the suit was filed seeking cancellation of the said sale deed in the year 1986 and moreover, there is a delay and laches also. Therefore, the question of entertaining the second appeal does not arise and there is no requirement for this Court to frame any substantial question of law in this second appeal.

11. When such being the case, I do not find any grounds to admit the second appeal and no grounds are made out to invoke Section 100 of CPC to frame substantial question of law.

12. In view of the discussions made hereinabove, I proceeds to pass the following:

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ORDER

Admission declined as no substantial question of law. Consequently, the Regular Second Appeal is dismissed.

Sd/- (H.P.SANDESH) JUDGE

DL List No.: 1 Sl No.: 26