1

ITEM NO.10 COURT NO.8 SECTION XII

SUPREME COURT OF INDIA

RECORD OF PROCEEDINGS

PETITION (S) FOR SPECIAL LEAVE TO APPEAL (C) NO (S).

23104 / 2014

(ARISING OUT OF THE IMPUGNED FINAL JUDGMENT AND

ORDER DATED 16/06/2014 in WP NO. 8267/2014 BY THE HIGH
COURT OF MADRAS)

T. JOSEPH BENZIGER PETITIONER(s)

VERSUS

THOMAS & ORS. RESPONDENT(s)

(WITH APPLN(S) FOR PERMISSION TO PLACE ADDL.

DOCUMENTS ON RECORD)

Date: 24/11/2014 This Petition was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE RANJAN GOGOI

HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN

For Petitioner(s) Mrs. Nalini Chidambaram, Sr. Adv.

Mr. V. Balaji, Adv.
Mr. Atul Sharma, Adv.
Mr. Rakesh Sharma, Adv.
Mr. Asailhambi MSM, Adv.

For Respondent(s) Mr. K.V. Jagdishvaran, Adv.

Mr. G. Indira, Adv.

UPON hearing counsel the Court made the following

 2

ORDER

No deposit has been made in terms of the order passed by this

court on 10th October, 2014. We have considered the merits of the

case and we are of the view that the present is not a fit case for

interference. The Special Leave Petition is, accordingly, dismissed.

(VINOD LAKHINA) (ASHA SONI)

COURT MASTER COURT MASTER

//TRUE COPY//
 3

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

REVIEW PETITION (CIVIL) NO. OF 2015

IN

SPECIAL LEAVE PETITION (Civil) NO.23104 OF 2014

(From the Impugned final order dated 24.11.2014 in Special Leave

Petition (C) No. 23104/2014 passed by this Hon’ble Court)

BETWEEN

T. Joseph Benziger …Petitioner

Versus

1. Thomas ...Respondent no. 1

2. Indian Bank,
Asset recovery Branch No. 2, Chennai
Rep. by its Branch Manager …Respondent no. 2

3. Mrs. S Amala Benziger … Respondent no. 3

W/o T. Joseph Benziger

4. The Debt Recovery Tribunal - II

Anna Salai, Chennai – 600 004 … Respondent no. 4

REVIEW PETITION UNDER ARTICLE 137 OF THE

CONSTITUTION OF INDIA.

To,

THE HON’BLE CHIEF JUSTICE OF INDIA AND HIS OTHER

COMPANION JUDGES OF THE SUPREME COURT OF INDIA,
NEW DELHI.
 4

The Review Petition of the petitioner above named:

MOST RESPECTFULLY SHOWETH:

1. That the petitioner above named respectfully submits this petition

seeking Revision of the Impugned judgment and final order dated

24.11.2014 in Special Leave Petition (C) No. 23104/2014 passed

by this Hon’ble Court, whereby this Hon’ble Court dismissed the

Special Leave to Appeal.

2. The brief facts in the present case for consideration of this

Hon’ble Court are as under:

a. The Petitioner, as proprietor of M/s Rose Gas Agencies, had

availed a loan from Indian Bank, Anna Salai Branch, Chennai.

He had submitted the original title documents of his property

(the subject property) situated at 136, comprised in Paimash

No. 440/1, Plot Nos. 6,7 & 8 in R.S. No. 270/6 admeasuring 2

grounds and 1306 Sq. Feet and in R.S. No. 270/7

admeasuring 1 ground and 355 sq.ft. situated within

Adambakkam Village, Saidapet taluk, as security for the loan

availed. The Petitioner had constructed a warehouse to store

LPG cylinders on the schedule properties.

 5
b. As the dues of the loan were not repaid, Indian Bank, Anna

Salai Branch, filed a suit in CS No. 1508 of 1995 before the

Madras High Court, subsequently renumbered as T.A. No. 457

of 1997 and transferred the same to the file of DRT – I,

Chennai against the Petitioner in his capacity as proprietor of

M/s. Rose Gas Agencies for recovery of a sum of Rs.

12,39,481/-.

c. Around the same time, Respondent No. 3, Mrs. Amala

Benziger, W/o the Petitioner herein, who is the proprietor of

M/s Asha Exports, availed certain loans from Indian Bank,

Esplanade Branch, Chennai, in her capacity as proprietor of

M/s Asha Exports. Certain Granite stocks held by M/s Asha

Exports were hypothecated with the bank as security for this

loan. Due to non-repayment of the dues under this loan, Indian

Bank, Esplanade branch filed a Suit in CS No. 239 of 1995

before the Madras High Court, subsequently renumbered as

T.A. No. 609 of 2001 and transferred to DRT-II, Chennai

against respondent no. 3 in her capacity as proprietor of M/s

Asha Exports for recovery of a sum of Rs. 40,37,192/-.

d. By order dated 18.10.2002, in T.A. No. 609 of 2001 filed by

Indian Bank, Esplanade Branch, DRT-II Chennai ordered that

Indian Bank, Esplanade branch, was entitled to a recovery

 6
certificate for a sum of Rs. 40,37,192 along with interest from

11.02.1995 from M/s Asha Exports. Recovery Certificate in

DRC No. 4 of 2003 was issued by DRT-II, Chennai. The

schedule of DRC No 4 of 2003 stated only the hypothecated

stocks of Granite as security.

e. On 07.12.2004, Indian Bank, Anna Salai Branch, sent a letter

to the Petitioner directing him to pay Rs. 27.44 Lakh as one

time settlement for dues of M/s Asha Exports and Rs. 3.76

Lakhs for the dues of M/s Rose Gas Agencies by 31.12.2004.

The petitioner paid a sum of Rs. 3.76 lakhs as one time

settlement of dues of M/s Rose Gas Agencies to Indian Bank,

Anna Salai Branch, on 17.01.2005. The same stated in a letter

by the petitioner to the Bank and was acknowledged by the

Chief Manager, Indian Bank, Anna Salai Branch with his

signature and seal.

f. As per the Petitioner, all of his dues as proprietor of M/s Rose

Gas Agencies to Indian Bank, Anna Salai Branch ended on

17-01-2005. However, the Bank did not withdraw T.A. No. 457

of 1997 on the file of DRT – I Chennai filed against the

Petitioner as promised by the bank officials and continued to

contest the same at DRT – I.

 7
g. Without disclosing the fact that a one-time settlement had

been made for the loan availed from Indian Bank, Anna Salai

Branch by the Petitioner, the Bank obtained a Recovery

certificate for the sum of Rs. 12,39,481/- along with interest

from 27-01-1995 from M/s Rose Gas Agencies and a recovery

certificate in DRC no. 5 of 2008 was issued by DRT – I,

Chennai. The Petitioner was under the impression that the

T.A. no. 457 of 1997 was withdrawn and did not attend any

court proceedings after the one time settlement was paid.

h. Subsequently, a letter was sent by Indian bank to DRT – I,

requesting that the DRC no. 5 of 2008 in T.A. No. 457 of 1997

pertaining to M/s Rose Gas Agencies be transferred to DRT –

II and be clubbed along with DRC no. 4 of 2003 issued by

DRT – II in T.A. No. 609 of 2001 which pertained to the loans

availed by M/s Asha Exports represented by Respondent No.

3 as proprietor. DRT – I transferred the same to DRT – II as

per the Bank’s request.

i. On 30-07-2008 the recovery officer, DRT-II, Chennai issued

an Auction sale notice and subsequently, the same was sold

on 10-09-2998 to Respondent no. 1 for Rs. 1.87 Crores. The

Recovery officer, DRT – II issued a sale certificate to

Respondent no. 1 on 09-02-2009.

 8

j. The Petitioner had already paid all dues of M/s Rose Gas

Agencies pertaining to TA No. 457 of 1997 and hence filed I.A.

No. 136 of 2009 in T.A. No. 457 of 1997 before DRT-I,

Chennai for a stay of further proceedings in DRC No. 5 of

2008 in T.A. No. 457 of 1997.

k. On 09-10-2009, in I.A. no. 136 of 2009 in T.A. 457 of 1997,

DRT-I Chennai granted a stay of all further proceedings taken

in pursuance of the final order passed in TA No. 457 of 1997

dated 14-09-2007 by DRT – I Chennai and also recovery

certificate issued by DRT- I, Chennai in DRC No. 5 of 2008 in

T.A. No. 457 of 1997 presently on the file of Office of DRT – II

Chennai till 30-19-2009. The Stay was further extended until

further orders by an order dated 10-05-2010 by the DRT – I.

l. On 25-04-2013, Respondent no. 1 filed a memo in DRC No. 4

of 2003 (DRT – II) and DRC no. 5 of 2008 (DRT – I) before the

recovery officer seeking eviction of the Petitioner from the

subject property and to deliver vacant possession of the

subject property to the Respondent. On 24-05-2013, the

Recovery officer passed an order directing the petitioner to

hand over vacant possession within 15 days.

 9
m. The Recovery Officer kept the eviction order of 24-05-2013 in

abeyance after the Petitioner filed a memo dated 06-06-2013

stating that DRT-I has issued an order dated 09-10-2009

granting interim stay of all proceedings in DRC no. 5 of 2008.

n. 1st Respondent filed a Writ Petition at Madras High Court W.P.

No. 8267 of 2014 praying for vacant possession and delivery

of the subject property. The Madras High Court passed an

order dated 25-03-2014 directing the 1st Respondent herein to

file an appropriate application before the Recovery Officer,

who should then dispose of the same within a period of 4

weeks of date of application. On 23-04-2014 the Madras High

Court passed as order directing the Recovery officer to take

steps to arrange for the vacant possession of the subject

property delivered to Respondent no. 1 herein immediately.

o. The Petitioner herein filed an affidavit dated 29-04-2014 in

M.P. No. 1 of 2014 in W.P. No. 8267 of 2014 before the

Madras High Court to suspend the order dated 25-03-2014

and 24-03-2014 passed by the Madras High Court.

Subsequently, the Madras High Court passed an order dated

30-04-2014 keeping the orders dated 25-03-2014 and 23-04-

2014 in abeyance until further orders.

 10
p. On 16-06-2014 the Madras High Court disposed of the case

and ordered that Respondent No. 1 herein is to be handed

over vacant possession of the subject property. Subsequently,

on 01-07-2014 The Recovery Officer of DRT-II Chennai took

possession and handed over the possession of the subject

property to Respondent no. 1.

q. Petitioner being aggrieved by the order of the Hon’ble Madras

High Court filed a Special Leave to Appeal (C) no. 23104 of

2014.

3. The petitioners being aggrieved by the dismissal of the SLP (C)

23104 of 2014 vide order dated 24.11.2014 are filing this Review.

Petition on the following among other grounds:

GROUNDS:

To review of the judgment order is sought for on the following

grounds:

i. It has skipped the attention of this Court and the Madras

High Court that DRC. No. 5 of 2008 in which the subject

property is given as security has been stayed by DRT-I

Chennai by order dated 09-10-2009 and the stay was

extended pending further orders by order of DRT-I dated 10-

05-2010. Hence, the stay still subsists. The subject property

 11
was brought for sale only after clubbing DRC No. 4 of 2003

and DRC No. 5 of 2008 since DRC. No. 4 of 2003 by itself

does not include the subject property. Unless I.A. No. 136 of

2009 in TA No. 457 of 1997 filed by the Petitioner is

dismissed by DRT-I Chennai, the possession of the

possession of the subject property cannot be handed over

to Respondent no. 1

ii. This Court and the Madras High Court has failed to

appreciate the facts of the case. It is respectfully submitted

that there are two separate loans. The loan availed by the

petitioner in his capacity as Proprietor of M/s Rose Gas

Agencies for which the subject property was given as

security was the subject matter of T.A. n. 457 of 1997 in

DRT-I, Chennai. The same has been settled by a one-time

settlement of Rs. 3.76 Lakhs paid on 17-01-2005 and

acknowledged by the bank on a letter on the same day.

DRC no. 5 of 2008 was erroneously issued by DRT-I without

appreciating that such a settlement was made with the

Bank.

iii. This Court failed to note that DRC no. 4 of 2003 in T.A. No.

609 of 2001 at DRT – II pertained to a loan availed by

Respondent no. 3 in her capacity as proprietor of M/s Asha

Exports. The Petitioner herein was not a co-borrower but

 12
had merely been the guarantor. The Security for this loan

was not the subject property, but stocks of Granite held by

M/s Asha Export, which had been duly hypothecated to the

Bank as security. DRC no. 4 of 2003 was not issued in

respect of subject property.

iv. This Court has failed to note that the Madras High Court in

para 8 of its judgment has erred in holding that DRC no. 4 of

2003 was issued directing the Petitioner to eliver vacant

possession of the subject property to Respondent no. 1.

DRC No. 4 of 2003 was issued by DRT II, Chennai with

respect to the loan availed by M/s Asha Exports not the loan

availed by the Petitioner for M/s Rose Gas Agencies. In fact

the Schedule annexed to DRC no. 4 of 2003 only mentions

the hypothecated stocks of granite as security not the

subject property.

v. This Court has erroneously failed to note that the Madras

High Court at Para 9 of its judgment held that DRC no. 4 of

2003 had become final. However, this court as well as the

court below failed to appreciate that the executionof DRC

no. 5 of 2008 in which the subject property was given as

security was stayed by order dated 09-10-2009 and the stay

was extended pending further orders by order dated 10-05-

2010.
 13

5. The review petitioner submit that he has not filed any Review

Petition earlier against the same impugned judgment before

this Hon’ble Court.

PRAYER:
It is therefore most respectfully prayed that this Hon’ble Court

be graciously pleased to:-

i) REVIEW the Impugned judgment and final order dated

24.11.2014 in Special Leave Petition (C) No. 23104/2014

passed by this Hon’ble Court.

ii) PASS any other or such further orders as may be deemed

fit on the facts of the present case.

AND FOR THIS ACT OF KINDNESS YOUR HUMBLE

PETITIONER AS IN DUTY BOUND SHALL EVER PRAY.

DRAWN BY: Settled and FILED BY:

A NTO NY R. J UL IA N

DANISH Z. KHAN
Advocate for Petitioner
Filed On:
14
 15
Annexure-P-1

SALE DEED (13,000)

This deed of sale made and executed on 21st day of March,

1994 by Sri Maralasiddaiah, aged 58 years, S/o. Late Siddaiah, R/o.

Hiremagalur Village, Jyothinagar post, Kasaba Hobli, Chikmagalur

Taluk in favour of Sri. Mariyappa, aged 50 years, S/o. Late Siddaiah,

R/o. Harijan Colony, Hiremagalur Village, Jyothinagar Post, Kasaba

Hoblil, Chikmagalur Taluk that:

Whereas, the property described in the schedule hereunder is

myself acquired property and the same is my possession and

enjoyment with khatha standing in my name and now, when I

propagated to sell the said property as I am in need of funds to

construct house, the purchaser herein offered to pay highest rate

and current market value of Rs.13,000.00 (Rupees Thirteen

Thousand only), I hereby sell, transfer and convey the schedule

property for a valuable consideration of Rs.13,000/- and handed

over possession this day. I acknowledge receipt of the entire sale

consideration of Rs.13,000/- in presence of the undersigned

witnesses.

Henceforth, either I or my descendants shall not have any

right, title or claim over the schedule property. None other

descendants have any inheritance claim, maintenance or any other

claims and the same is free from all disputes and court litigations
 16
and encumbrances. I have not alienated the schedule property to

anybody in any manner. There are no disputes or court litigations on

the schedule property from our descendants or anybody or any

prohibition. In case of any hindrance to your ownership and title in

future, I shall resolve the same out of my own cost and risk and from

out of my other immovable properties. You shall have absolute right,

title and ownership over the schedule property and you shall get

mutated khatha of the same into you name and enjoy the same

throughout your lifetime and that of your descendants with right to

alienate by way of sale, gift, lease, mortgage etc. The current market

value of this property is Rs.13,000/-.

Schedule

Dry land bearing Sy.No.1002/12 measuring 22 guntas, with

assessment of 1-02 situated at Hiremagalur Village, bounded on

the:

East by : Road;

South by : Khasim Sab’s land;

North by : Land retained by me;

The property situated amongst the aforesaid boundaries is the

subject of this sale deed with all easements and appurtenances

thereto for a consideration of Rs.13,000/- and transfer possession of

 17
the same this day and accordingly executed this sale deed out of my

free will and volition.

Sd/- Vendor

Witnesses:

1. Sd/-

2. Sd/-

None of the conditions at (a) to (j) of the Government

notification No.Rd 80 EASM 93 (P) dated 14/02/1994 are violated.

Schedule Property is situated within the limits of Bekanahalli

Village Panchayat, Kasaba Holi within purview of the office of the

Sub-Registrar, Chikmagalur Taluk.

//True Copy//
 18
Annexure P-2

IN THE COURT OF CIVIL JUDGE SENIOR DIVISION

AT CHIKMAGALUR
O.S.NO.84/98
Plaintiff:- Maralusiddaiah
S/o Late Siddaiah,
Aged about 62 years,
Resident of Belur Road,
Hiremagalur, Chikmagalur

Vs.

Defendant:- Mariyappa
S/o Late Siddaiah
Aged about 50 years,
Resident of Harijan Colony,
Hiremagalur, Chikmagalur

Under O.7 R.1 CPC the plaintiff submits:-

1) The address of the parties for Court process is as stated

above. The address of the plaintiff is also that of his Advocate,

Sri T.K.Vishwanath, Advocate, Basavanahalli, Chikmagalur.

2) The defendant is the younger brother of the plaintiff. The

defendant is residing in the house property allotted to him at

the oral partition between plaintiff and defendant, which took

place after the demise of their father late Siddaiah. The

plaintiff has been residing in the schedule property by

construction a farm house in the schedule property about 10

years back. The plaintiff is the absolute owner in possession of

the schedule property having purchased the same under a

register sale deed dated 24.3.75 regard as document No.3224

registered in the office of S.R.Chikmagalur.

 19
3) Late Siddaiah, the father of the parties owned two items of wet

lands in S.No.51 and 122 of Hiremagalure Village,

Chikmagalur tlg. The extents of those lands are 13 guntas and

24 guntas. Late Siddaiah died during the year 1970. After the

demise of the father, the plaintiff and defendant have orally

divided these items equally. So also the parties also divided

the house property equally. The katha in respect of the entire

extents of lands and the house property continued in the name

of Mr. Siddaiah, the father. The defendant has been in

possession and enjoyment of his portion of agricultural lands

in the above two S.Nos. Apart from the above two items of

agricultural lands, late Siddaiah had wet lands in Magadi also.

The said lands were sold by the parties to this suit after the

premise of their father.

4) Late Siddaiah also owned a house property in Harijan Colony,

Hiremagalur. As mentioned above, the said house property

was divided between the plaintiff and the defendant. The

defendant and his family members are residing in the said

house, which had fallen to their share. The house property

which fell to the share of the plaintiff fell about 10 years ago.

After the falling of the said house, as mentioned above, this

 20
plaintiff has been residing in the schedule property by

constructing a farm house therein.

5) During the year 1994, the defendant who had been in

difficulties wanted to raise loan on the properties, which fell to

his share in the oral partition. Therefore, the defendant asked

the plaintiff to execute a registered partition deed. The plaintiff

agreed to execute the registered partition deed. This plaintiff

also paid a sum of Rs.500/- as his contribution towards the

expenses for the partition deed. The plaintiff who is a simple,

straight forward, honest village folk and is an illiterate and

innocent person knows only to sign in Kannada, believed his

brother-the defendant. Thinking that the defendant would get a

partition deed ready in respect of the properties of their father

went to the S.R.Office, Chikmagalur on 21.3.94. The plaintiff

affixed his signature and L.T.M. in S.R.Office, Chikmagalur to

a document prepared and produced before S.R.Office,

Chikmagalure by the defendant. This plaintiff also paid a sum

of Rs.500/- to the defendant at that time being his contribution

to the partition deed. The plaintiff till the first week of January

1996 was under the impression that a registered partition deed

came into existence between him and defendant during 1994.

But, the plaintiff received a suit summons in O.S.No.438/95 on

 21
the file of II Additional Civil Judge Junior Division at

Chikmagalur to appear before her on 6/1/96.

6) This plaintiff after receipt of suit summons in O.S.No.438/95

took the same to Sri. G.M.Jayakumar, Advocate, Chikmagalur

along with his son Shivanna. Sri.G.M.Jayakumar after reading

the plaint copy and other papers informed the plaintiff and his

son that this plaintiff has sold a portion of the schedule

property for a sum of Rs.13,000/- under a registered sale deed

dated 21/3/94 and has put the defendant in possession of a

portion of the schedule property. Thus, through

Mr.G.M.Jayakumar, Advocate this plaintiff learnt that the

defendant by playing fraud and deceit got prepared a sale

deed so as to convey a portion of the schedule property and

got it registered as document No.3482 registered in the Office

of S.R.Chikmagalur. Thus the said sale deed is a product of

fraud, misrepresentation and coercion. Infact market value of a

gunta of schedule property during 1994 was not less than

Rs.10,000/- as it is situated within Chikmagalur City limits.

Therefore the sale deed dated 21/3/94is not binding on the

plaintiff and will not create any right, title or interest in respect

of a portion of the schedule property. The defendant has not

paid money to the plaintiff on 21/3/94 at the time of registration

 22
of the sale deed or any time prior to it. The possession of the

schedule property all along continued with the plaintiff. As the

defendant failed to prove the sale deed and also his alleged

possession in respect of a portion of the schedule property,

O.S.No.438/95 was dismissed by the Hon’ble II Additional

C.J.J.D. The defendant has not preferred any appeal against

the Judgment and decree and as such it has become final.

7) The defendant after dismissal of O.S.NO.438/95 filed a pettion

before the Tahasildar, Chikmagalur to effect change of katha.

After the said order, the defendant tried to take forcible

possession of a portion of the schedule property and tried to

put up temporary structure thereon. The plaintiff registered the

said attempt of the defendant. Police complaints were also

filed by the plaintiff herein. The plaintiff also got filed an appeal

before the Hon’ble Assistant Commissioner, Chikmagalur in

R.A. 3/9899 and obtained an order of stay. The defendant thus

tried to interefere with the peaceful possession and enjoyment

of the schedule property by the plaintiff. Hence this suit for

declaration and permanent injunction.

8) The cause of action for the suit has arisen during first week of

January 1996 by that time the plaintiff received suit summons

in O.S. 438/95 and subsequently when the defendant tried to

 23
disturb the peaceful possession and enjoyment of the

schedule property, at Hiremagalur village, Chikmagalur tlq.

9) Value of suit for purpose of Court fee and jurisdiction is as per

valuation slip and court fee paid thereunder.

10) Relief Claimed:-

The plaintiff prays for the following reliefs,

a) To declare that the plaintiff is the absolute owner in

possession of the schedule property,

b) To set aside the document dated 21/3/94, registered as

Document No. 3482 registered in the office of S.R.

Chikmagalur,

c) For permanent injunction restraining the defendant, his sons

and all persons claiming under him from trespassing into the

schedule property or in any meddle with peaceful possession

of the schedule property by the plaintiff.

d) For court costs and other reliefs.

Dry lands measuring 0-22 guntas situated in S. No. 1002:12

situated in Hiremagalur village, Chikmagalur having the

following boundaries:
 24
East: Belur Road, West : Kasim Sab’s lands (Formerly Belur

Temple Inam lands)

North: Lands of Kenchamma

South: Road

Advocate for Plaintiff

Plaintiff

What is stated above is true to beat of my knowledge, belief

and information.

Chikmagalur.

Date:02/12/98 Plaintiff
 25
IN THE COURT OF CIVIL JUDGE SENIOR DIVISION
AT CHIKMAGALUR.
O.S.NO. 184/98
Plaintiff :- Marlusiddaiah
Vs
Defendant :- Mariappa
Valuation slip:

SL. No. of Clause of Assmt or Method Valuation

pty in sec 7(2) of other adopted to arrived at
plaint K.C.F.S.V. mode of value the
schedule Act under valuing pty
which pty pty
comes
(b) 1.02 12.5 x 12.75
1.02
Market value of the property for purposes of Declaration and

Injunction is 1000-00 as the market value arrived at would be

less than Rs. 1000.00. C.F. payable would be Rs. 25-00 under

Sec. 24 (b) of the Act.

For the purposes of setting aside the sale deed, C.F. payable

is under Sec 38 of the Act on Rs. 12,75 and Court fee payable

would be Rs. 2.50.

In all a Court fee of Rs. 27.50 is paid on the plaint.

For purpose of Jurisdiction, the value of suit would be Rs.

4,40,000-00 at Rs. 20,000-00 per guntas.

Chikmagaluyr.

Date: 02/12/98 Advocate for plaintiff.

//True Copy//
 26
Annexure A-3

IN THE COURT OF THE CIVIL JUDGE (SENIOR DIVISION)

AND C.J.M.AT CHIKMAGALUR

O.S.NO. 184/1998

PLAINTIFF: SRI. MARULASIDDIAH

/VS/

DEFENDANT: SRI: MARIYAPPA

WRITTEN STATEMENT

WRITTEN STATEMENT FILED BY THE DEFENDANT UNDER VIII

RULE 1 AND 2 READ WITH SECTION 151 OF C.P.C.:-

The Defendant beg to submit as follows:-

1. The address of the parties for the service of court process are

as stated in the cause title of the plaint and notices that may

be issued from this Hon’bvle Court to this defendant may also

be served on his Advocates Sri K.Rama Rao, and J.K.

Somashekar, Advocates, Fort, Belur Road, Chikmagalur.

2. The averments made in para 2 of the plaint are partly

admitted. It is true that the defendant is the younger brother of

the plaintiff and it is also true that this defendant is residing in

the house property allotted to him at the oral partition between

plaintiff and defendant which took place after the death of their

father late Siddiah. It is false that the plaintiff has been

 27
residing in the schedule property by constructing a form house

in the schedule property about 10 years back and the Plaintiff

is the absolute owner in possession of the schedule property

having purchased same under a registered sale deed dated

24.3.1975 which has been register in the office of the Sub-

Registrar, Chikmagalur are all denied as false and incorrect.

The Plaintiff is put to strict proof of the same.

3. The averments made in a para 3 of the plaint that the father of

the parties the late Siddiah owned two items of wet lands in

Sy.No. 51 and 122 of Hiremagalur village, Chikmagalur Taluk

and the extents of these lands are 13 guntas and 24 guntas

respectively and the father of the parties died during the

year1970 and after the demise of the father, the plaintiff and

the defendant have divided these items equally and also the

parties divided the house property equally and the Khata in

respect of the entire extent of land and the house property

continued in the name of Mr. Siddiah, the father of the parties.

The defendant has been in possession and enjoyment of his

portion of agricultural land in the above Sy.Nos: Apart from the

above items of agricultural lands, late Siddiah had wet lands in

Magadi also. The said land were sold by the parties to this

suit after the demise of their father are all admitted.

 28
4. The averments made in para 4 of the plaint is partly admitted.

It is true that late Siddiah also owned a house property in

Harijan Colony of Hiremagalur. The house property was

divided between the parties and the defendant. It is also true

that plaintiff and defendant are residing in the house which

had fallen to their share. But the allegation that the house

property fell to the share of the plaintiff about 10 years ago,

and after the falling of the said house this plaintiff has been

residing in the schedule property by constructing a form house

therein are all denied as false and incorrect and the plaintiff is

put to strict proof of the same.

5. The averment made in para 5 of the plaint that during the year

1994 this defendant who had been in difficulties wanted to

raise loan on the properties which fell to his share in the oral

partition, therefore this defendant asked the plaintiff to execute

a registered partition deed and the plaintiff also paid a sum of

Rs. 500/- as his contribution towards the expenses for the

partition deed and further the plaintiff who is simple and

straight forward, honest, village folk and is an illiterate and

innocent person knows only to sign in Kannda, believed his

brothers, this defendant and affixed his signature and L.T.M. in

Sub-Registrar Office, Chikmagalur to a document prepared

and produced before the authority by this defendant and the

 29
Plaintiff till the first week of January 1996 was under the

impression that a registered partition deed came into

existence between him and defendant during 1994 are all

denied as false and incorrect and these concoted theory for

the purpose of the case. In fact the plaintiff had executed a

Registered Sale-deed in favour of the defendant in respect of

the plaint schedule property for a total sale consideration of

Rs. 13,000/- and the said document was registered before the

Sub-Registrar, Chikmagalur and it is not a partition deed as

alleged. This fact was known to the Plaintiff at the time of

registration and he is concealing the said facts and trying to

grab the property that was sold to this defendant in the year

1994. The sale made by the plaintiff is a completed sale in the

presence of witnesses and the plaintiff has no right, title and

interest in the said property and the property is in possession

of this defendant ever since the date of sale.

6. The averments made in para 6 of the plant are not admitted.

The plaintiff is aware of the sale made by him and this

defendant has not played any fraud and deceit in favour of the

plaintiff and got register the sale deed to convey a portion of

the schedule property in favour of this defendant. This

defendant has paid Rs. 13,000/- in favour of the plaintiff at the

time of registration of the document and on the same day the

 30
possession was delivered in favour of this defendant and then

this defendant is in possession and in enjoyment of the

schedule property. It is true that this defendant had instituted

a suit in O.S.No.438/95 against the plaintiff on the file of the

IIND Additional Munsiff and JMFC., Chikmagalur, and the said

suit was dismissed. This defendant has not preferred any

appeal against the Judgment and Decree any appeal against

the Judgment and Decree of the IInd Additional Munsiff and

JMFC., Chikmagalur.

7. The averments made in para 7 are partly admitted. The

learned Thasildar after perusing the said sale deed has

ordered for change of Khata in favour of this defendant. As

such this defendant proceeded to got change the Khata, the

Plaintiff has preferred an appeal against the order of the

Tahasildar Chikmagalur, before the Assistant Commissioner,

Chikmagalur. Now, the Khata of the suit schedule property

stand in the name of this defendant. The plaintiff is in a habit

of filing false complaints to the police in order to harass and

knock of the plaint schedule property, and even he has filed

this suit falsely alleging against the defendant to have the

wrongful gain.

8. The alleged cause of action is an imaginary one.

 31

9. The plaintiff is not entitled to the order as claimed in para 10 of

the plaint much less the relief of declaration, cancellation of

document and permanent injunction and other reliefs.

10. All other allegations in the plaint which are contrary to

the above and not specifically admitted herein are all denied

as false and incorrect.

11. WHEREFORE, it is humbly prayed that the Hon’ble

Court be pleased to dismiss the suit of the plaintiff with costs

of this defendant in the interest of equity and justice.

Advocate for Defendant Defendant

VERIFICATION

What is stated above in para 1 to 10 are true to the best of my

knowledge, belief and information.

Chikmagalur.
Dated: 16.06.1999 Defendant

//TRUE COPY//
 32
Annexure-P-4

Govt. of Karnataka

TITILE SHEET FOR JUDGMENTS IN SUITS

IN THE COURT OF THE CIVIL JUDGE [SD] AT CHIKMAGALUR.
Present : Sri. T. Vithal Rao, B.Com. LL.B.
[Name of the Presiding Judge]
ORIGINAL SUIT No. 184/1998
Plaintiff/s: Marulasiddaiah S/o Late Siddaiah, aged about 62
years, R/o Belur Road, Chikmagalur City 577 101.
[By Pleader Sri T.K.Vishwanath]
-Vs-
Defendant/s : Mariyappa since dead by L.Rs.
a. Devamma, W/o late Mariyappa;
b. Jayanna S/o late Mariappa, aged about 36
years;

c. Rajakumar S/o Late Mariappa, aged about 36

years;
d. Lokesh S/o Late Mariappa , aged about 34
years;
e. Jagadish S/o late Mariappa, aged about 30
years;
f. Khantharaj S/o Late Mariyappa, aged about 26
years;
g. Rashmi D/o late Mariyappa, aged about 20
years;
h. Kavitha D/o Mariyappa, aged about 18 years;
All are majors and R/o Hospital Road,
Hiremagalur, Jyothinagar Post, Chikmagalur
[By Pleader Sri. K. Rama Rao & J.K.Somashekar]
Date of the institution : 03.12.1998
 33
of the suit

Nature of the suit [Suit : Suit for declaration and injunction

for pronote, Suit for
declaration and
possession suit for
injunction etc.]
Date of the : 7.11.2000
commencement of
Recording of the
evidence
Date on which the : 27.9.2005
judgment was
pronounced
Total Duration : Year/s Month/s Day/s
-6- -10- -24-

CIVIL JUDGE [SD]: CHIKMAGALUR

JUDGMENT

This is a suit filed by the plaintiff against the defendant for

declaration, injunction and also for setting aside the sale deed.

2. The plaint averments in brief are as under:

The plaintiff and the defendant are the brothers, the defendant is

residing in the house allotted to him in an oral partition between

plaintiff and defendant which took place after the death of their

father. The plaintiff is residing in the schedule property by

constructing a farm house since 10 years. The plaintiff is the

 34
absolute owner of the suit schedule property which he has

purchased under a registered sale deed dt. 24.3.1975. The father of

plaintiff and defendant were having the properties at Hiremangalur

village. They have divided the properties among themselves equally

after the death of their father. The house property which was fallen

to the share of plaintiff fell about 10 years back, after felling of his

house he has constructed the house in the schedule property and

residing in it.

3. During the year 1994 the defendant who had been difficulties,

intended to raise loan on the properties which were given to his

share under the oral partition. The defendant requested the plaintiff

to execute the registered partition deed for which the plaintiff

agreed. At the time of registering the document the plaintiff has paid

Rs. 500/-. The plaintiff is an illiterate and innocent man, he knows

only putting his signature in Kannada but he cannot read and write,

he believed the words of defendant that he will get the partition deed

registered. The plaintiff went to Sub Registrar office on 21.3.1994

and put his signature on the document prepared and produced

before the Sub Registrar by the defendant. Till 1st week of January

1996 the plaintiff was under the impression that a registered

partition deed has come into existence between himself and the

defendant during the year 1994. When he received the summons in

 35
O.S. 438/1995 filed by defendant the plaintiff approached his

Advocate who explained that the defendant claims that the plaintiffs

has sold his house property i.e suit property to him for Rs. 13,000/-

on 21.3.1994. Actually the plaintiff has not executed any such sale

deed. The sale deed is created by defendant fraudulently by this

representation and coercion. The market value of the suit property in

the year 1994 was not less than Rs. 10,000/- per gunta as it is

situated within the limits of Chikmagalur city. The defendant has not

paid Rs. 13,000/- to him at the time of registration of sale deed nor

he informed about it prior to the registration. Only when the plaintiff

received the summons in the above said suit he came to now about

the said document. But the suit filed by the defendant No. 1 was

dismissed by 2nd Addl. City Judge [JD], Chikmagalur. Even after the

dismissal of the suit also the defendant is trying to get the katha

changed in his name and he has interfered in the possession and

enjoyment of plaintiff. So he has filed this suit for declaration and

injunction with a prayer to set aside the sale deed.

4. The defendant has appeared and filed the written statement. The

defendant has admitted the relationship between himself and the

plaintiff. He admits that there was an oral partition between himself

and the plaintiff in the properties of their father. But he denied that

the plaintiff has constructed the house property in the suit property
 36
and residing in it since 10 years. It is denied that the plaintiff is the

absolute owner and in possession of suit property even after the

registration of sale deed dt. 21.3.1994.

4. The defendant contends that the plaintiff has sold the suit

property to him since from the date of purchase he is in

possession and enjoyment of suit property. The defendant denies

that he is residing in the house property which was fallen to his

share in the partition. So also it is denied that the house property

allotted to the share of plaintiff has fallen down as such he

constructed a new house. He denies that during the year 1994 he

was facing financial difficulties and he wanted to raise the loan so

he requested the plaintiff to execute the partition deed. As such

the plaintiff believed that the partition deed is going to be

executed, hence he signed it believing that it is partition deed.

The defendant has actually purchased the suit property by paying

sale consideration of Rs. 13,000/- to the plaintiff before the Sub

Registrar and thereafter the sale deed was registered. Now the

plaintiff has come up with a false case that the sale deed is a

product of fraud, misrepresentation and coercion. As such the

suit of the plaintiff is not maintainable, so it should be dismissed.

 37
6. On the above pleadings my predecessor has framed the following

issues:

1. Whether the plaintiff proves that the defendant by playing

fraud as stated in para 5 of the plaint obtained a document in

respect of schedule property so as to mean it as sale deed?

2. Whether the defendant proves that the schedule property

was purchased by him and the said document is not a product

of fraud and misrepresentation?

3. Whether the defendant proves that he paid Rs. 13,000/- to

the plaintiff and purchased the schedule property from the

plaintiff?

4. What decree or order?

7. During trial the plaintiff and one witness are examined as P.Ws 1

and 2 and Exs. P.1 to P10 documents are marked. On behalf of the

defendants, the defendant and two witnesses are examined as

D.Ws 1 to 3 and Exs. D.1 to D.5 documents are marked. Thereafter

argument is heard.

8. My findings on the above issues are:-

Issues No.1 : In the negative;

Issue No. 2 : Accordingly;

Issue No. 3 : In the affirmative;

Issue No. 4 : As per the final orders.

 38
REASONS

9. Issue Nos. 1 and 2 : These two issues are one and the same as

such to avoid repetition I have taken them for discussion together.

10. The main allegation of the plaintiff is that the defendant was in

financial difficulties during the year 1994 so he intended to raise the

loan on his properties, which were given to his share in the oral

partition. Therefore to make it convenient for the defendant to raise

the loan he agreed to execute the registered partition deed.

Accordingly he has paid Rs. 500/- towards registration charges also.

But he is an illiterate and innocent village man, he know only putting

signature in Kannada but actually he is an illiterate person he cannot

read and write. So he thought that the defendant being his brother

is getting the partition deed registered as such he put his signature

on the sale deed thinking that it is a partition deed. He learnt that the

defendant has got the sale deed registered behind his back without

disclosing anything to him, as such he contends that it is a sale

deed created by playing fraud, misrepresentation and coercion on

him.

11. The plaintiff has produced the certified copy of the sale deed in

Ex.P.4 the original of which is marked as Ex.D.1. Looking to the

contents of this document it is mentioned that the suit property is the

self acquired property of plaintiff but the plaintiff is in need of money

to construct his house. So he offered to sell the property, the

 39
defendant has agreed to purchase it for Rs. 13,000/- and said it to

the plaintiff. In page 2 of the sale deed it is clearly mentioned that on

the date of sale deed itself he has received Rs. 13,000/- in the

presence of the witnesses and handed over the possession. So the

document clearly reads that the plaintiff has received Rs. 13,000/-

consideration amount from the defendant and executed the sale

deed. Looking to the endorsement of the Sub Registrar which reads

that the plaintiff has admitted that he has executed the sale deed.

There are attesting witnesses and also identifying witnesses who

have signed this document on the same page. So it goes to show

that the sale deed is registered by the Sub Registrar according to

procedure. The above said endorsement clearly goes to show that

sale deed is read over to plaintiff, he has admitted the contents,

thereafter it is registered.

12. As mentioned above the contents of sale deed clearly read that

the defendant has paid the consideration amount thereafter he got

the sale deed registered. The contention of the plaintiff is that the

defendant was in need of money so he intended to raise the loan, at

this request the plaintiff agreed to execute the partition deed he was

not knowing that it is going to be registered as sale deed so he

alleged that the defendant has played fraud, misrepresentation and

also coercion on him. As such it is the duty of the plaintiff to give

detailed particulars of these allegations since it is mandatory looking

 40
to the proviso is of order 6 rule 4 CPC. But the plaint allegations are

very vague it is simply mentioned in the plaint that the defendant

played fraud, misrepresentation and coercion. It is not known as to

how the defendant can play fraud on him and why he should

misrepresent etc. Apart from this there is a mention that there was

coercion on him. The coercion is a totally different word from fraud

and misrepresentation. I fail to understand as to what was the said

coercion played by the defendant on the plaintiff, why the plaintiff

should heed to the coercion imposed by defendant on him. As

mentioned above his own plaint allegations goes to show that the

defendant was in need of money and he intended to raise the loan

so to help his brother i.e. defendant, he signed the sale deed. As

such there is no question of any coercion in this case.

13. P.W.1 is the plaintiff in the present case. He has deposed in his

evidence about the properties which were belonging to his father

and the partition effected between himself and the defendant which

is not disputed. He states that he is the owner of the suit property

which measures 22 guntas. He purchased it from the previous

owner about 25 years back through a registered sale deed, this is

also not disputed by the defendant. But his evidence clearly goes to

show that there was already an oral partition between himself and

his brother i.e defendant as such I fail to understand as to what

made the plaintiff to go for a registered partition deed. But the

 41
reasons given by him are not convincing to the effect that to make it

convenient for the defendant to raise the loan he signed a deed

before the Sub Registrar believing that it is partition deed. Looking

to the plaint it is not the allegation of the plaintiff that the Sub

Registrar did not read over the sale deed to him and also it is not

alleged by him that the scribe of the document never read over the

contents of the document to him. So this itself goes to show the

statement of this witness to the effect that he was not knowing the

contents of the document is not at all reliable. Regarding deriving

the knowledge about the sale deed he contends that, when he

received the suit summons in O.S. 438/1995 from the Addl. Civil

Judge [JD] Court, Chikmagalur, he came to know about this fact.

14. He has deposed in his evidence that on the date of execution of

the document he was taken to Sub Registrar office by saying that

his presence is necessary for effecting division in the paddy land of

the defendant. He states that he went with one Malaiah, by the time

he reached the Taluk office the document was kept read and his

signature was taken. He has stated another fact to the effect that in

Taluk office his signature was taken on an application but he does

not know what the defendant did that said application. So his

version in the chief examination is not believable. According to me

when he knows that he put his signature there is no reason to

believe that he is an illiterate man he cannot read and write. Looking

 42
to his evidence he has not at all behaved liked an ordinary prudent

man because whenever a document is registered and whenever a

person is asked to put his signature it is natural that the said person

will definitely make an enquiry regarding the contents of the

document, unless it is read over, the person who insisted to put the

signature will not sign it. But in the present case the plaintiff claims

that he was kept ignorant about the contents of the document. I

have already mentioned above that there is no allegation that even

the Sub Registrar did not read over the contents of the document.

The sale deed itself reveals that he has admitted the contents of the

document and in page 2 it is clearly mentioned he has received Rs.

13,000/- it, the present of the witnesses. Of course he states that

value of this property at the time of registration of sale deed in the

year 1994 was more than 20,000 to 25,000/- rupees. But in his

plaint he has pleaded that it was about Rs. 10,000/-. Hence in this

regard also there is a serious variation between his pleading and

proof. He has not produced any document to prove this contention.

He has not produced any receipt to believe that he has paid Rs.

5000/- as a registration fees. Of course he has not stated as to who

received the said amount from him. The plaintiff has produced

Exs.P.1 to P.3 the sale deed and other relevant documents to show

that he was the owner of the schedule property but the defendant

has not denied that the plaintiff was the owner of the schedule
 43
property. So looking to his version in the chief examination nowhere

it is stated by him as to how he was defrauded and what was the

misrepresentation and coercion practiced on him by the defendant.

So his evidence is not at all believable in this regard.

15. In the cross-examination P.W.1 states that he does not

know who was the scribe of Ex.D.1 but it was kept ready when he

went to the Sub Registrar office. He denies that only when he came

to know the contents of the document which was read over to him,

he has signed it. But he admits that he never asked the scribe and

defendant to read over the document. Of course he states that Sub

Registrar did not enquire him whether the contents of the document

are true or false. This is an afterthought version which cannot be

believed. On the basis of the said sale the name of the defendant

was ordered to be entered by the Tahsildar against which he

preferred appeal to Asst. Commissioner which was also dismissed.

So it is suggested only after receiving consideration amount of Rs.

13,000/- from the defendant he has put his signature on the sale

deed and executed the sale deed. He admits that himself, Malaiah

and Rangajja have signed the sale deed. It seems that this Rangajja

is Rangaiah who is examined as D.W.3 in the present case. He has

not stated as to why these witnesses also singed the sale deed and

it is not stated by him why these witnesses are also against to him,

no any enmity is attributed to the attesting witnesses. As such his

 44
evidence is totally unreliable looking to his evidence nowhere it is

proved that the defendant has practiced fraud, misrepresentation

and coercion on the plaintiff and get the sale deed registered by

misguiding him.

16. P.W.2 is the son of plaintiff, he has deposed that they are in

possession of the suit property, his father knows only putting his

signature in Kannada but he is an illiterate person, he is not

acquainted with the Court and other office matters. They came to

know about this sale deed only when he received suit summons

thereafter his father filed the suit which was dismissed. He states in

the cross-examination that on enquiry his father told that he

executed the partition deed to make it convenient for the defendant

to obtain the loan. He states that his father was not in need of any

amount in the year 1994 but the defendant was in need of loan. But

this witness was not at all present at the time of registration of sale

deed and at the time of payment of amount by the defendant to the

plaintiff. So his evidence is also of no use to the plaintiff. So except

the interested testimony of father and son there is no other

independent witness on behalf of the plaintiff. The plaintiff is

deposing against to the contents of the registered sale deed alleging

that it is not binding on him and also alleging that it is the produce of

fraud, misrepresentation and coercion. To prove the same the

burden is on him which he has not discharged according to me.

 45
17. Looking to the evidence of D.W.1 he fully corroborates

with his pleadings and the contents of the sale deed in Ex.D.1. He

has stated that suit property was standing in the name of the plaintiff

which he had purchased from one Padmamma. Ofcourse he states

that it was registered in his name since he was the eldest member of

the family and also he states that it was purchased out of joint

family. But in the written statement no such contention is taken.

Further his evidence goes to show that there was an oral partition

between himself and the plaintiff about 20 years back since then

they are enjoying their share of property separately, the plaintiff tried

to sell the suit property to some 3rd person in the year 1994, so he

agreed to purchase it. The sale talks were held 15 days prior to the

registration of the sale deed, at the time of registration of sale deed

plaintiff, himself, one Malaiah and Rangaiah were present.

Thereafter they have approached one Mullundappa who is a scribe,

the sale deed was prepared at 11.00 a.m. The plaintiff and

defendant both instructed Mullundappa to write the sale deed. The

contents of the sale deed were read over to plaintiff, he admitted it,

thereafter it was taken for registration before Sub Registrar. D.W.1.

has stated that he paid Rs.13,000/- to Mullundappa who inturn paid

it to plaintiff. So his evidence clearly goes to show that the

witnesses were present, he paid Rs. 13,000/- in the presence of

Mullundappa thereafter the plaintiff has singed the sale deed so also
 46
the witnesses. In the cross examination also this witness has

deposed regarding the registration of the sale deed which fully

corroborates with his chief examination. It is suggested that the

value of the suit schedule property was more than the sale

consideration amount which he denies. It is suggested that if the

sites are formed in the suit property they will be sold at the rate of

Rs. 30.000 to 40.000 for a site measuring ‘30 x 40’ D.W.1. states

that he does not know it. But the plaintiff has not produced any

document in this regard. So this suggestion cannot be believed, no

documents are produced to show that as on the date of sale the

price of the lands in that area were much more than what is paid by

the defendant. So it cannot be held that the defendant got

registered the sale deed for a lesser price.

18. There is the evidence of D.W.2 he has stated that he has

written the sale deed but he admits that he is not having licence to

write it so he got it signed by one Narasimhamurthy who is a

licensed scribe. Even if it is held that this witness has not written the

sale deed but his evidence clearly goes to show that the plaintiff ,

defendant and another person by name Rangaiah and Malaiah who

have signed as witnesses were present. It should be noted that

there is the signature of D.W.2 on the back side of the first page of

Ex.D.1 which is marked as Ex.D.1(c). So this itself goes to show

that D.W.2 was present at the time of registration of sale deed and
 47
the amount was paid to him by the defendant, he in turn paid it to

the plaintiff. He clearly states that at the time of registration of the

sale deed Sub Registrar also read over the contents of the sale

deed, he has signed the sale deed as identifying witness, he has

identified the plaintiff. So he fully corroborates with the statement of

D.W.1., D.W.2 is the another attesting witness of Ex.D.1 he has

stated that he was also present at the this of registration of sale

deed, his signature is at Ex.D.1(a) his evidence makes it clear that

he was present at the time of registration of sale deed himself,

D.W.2 and one Malaiah have singed so also the plaintiff has signed

after receiving the sale consideration amount. Of course, there is

the cross examination regarding the agreement for effecting the

partition and registering the partition deed etc., and even a draft was

prepared and it was given to defendant. This witness has also

stated the boundaries of the property sold by the plaintiff to the

defendant. His evidence goes to show that there is already a

partition of course the partition deed was not registered. But there is

no dispute about partition in this case, the plaintiff himself admits

that partition was effected orally which is not disputed by defendant.

So looking to the evidence of these witnesses also he fully

corroborates with the actual facts of the case and it clearly goes to

show that the plaintiff himself has sold the land by receiving the sale

consideration amount, no any fraud, misrepresentation or coercion

 48
is committed by the defendant at the time of registering the sale

deed. Hence the contention of defendant that the sale deed is not a

product of fraud, misrepresentation and coercion is correct.

According to me issue No.2 was not necessary in the present case

since issue No.1 was already framed and the burden was on the

plaintiff to prove that the defendant has played fraud,

misrepresentation and coercion on him and get the sale deed

registered fraudulently. As such issue No.1 is answered in the

negative and issue No.2 is answered accordingly.

19. Issue No.3: While answering issue Nos.1 and 2 it is held

that plaintiff has sold the sit property to the defendant for an amount

of Rs. 13,000/-. The contention of the defendant is that he has

purchased the suit property by paying sale consideration amount of

Rs. 13,000/- at the time of registration of sale deed but the plaintiff

has contended that the defendant played fraud on him, he has not

received any consideration amount, he signed Ex.D.1 believing that

it is a partition deed. According to me all these contentions are

baseless and unbelievable. I have mentioned above that the

plaintiff who knows to put his signature in Kannada cannot be

believed that he is such an illiterate and ignorant man that he can

sign any document believing the words of the defendant. The story

set up by the plaintiff is that the defendant was in need of money

and he was intending to raise the loan so he insisted him to get the
 49
partition deed registered. As such he went to Sub Registrar office,

put his signature believing that it is a partition deed. It is not the

case of plaintiff that he has put signature on blank paper and also it

is not his contention that he was not present at the time of

registration of Ex.D.1. But all these contentions are baseless there

is no any independent witnesses present with the plaintiff, except

the evidence of P.W.2 who was his son who was not present at the

time of registration of sale deed. The defendant denies that he was

in need of the loan at the time of Ex.D.1. Moreover there is the

evidence of D.Ws 2 and 3 who have stated that the plaintiff received

Rs. 13,000/- from defendant at the time of registration of sale deed,

it was the sale deed which was read over to him by the scribe and

also the Sub Registrar, he has admitted the contents of sale deed

and put his signature. I have already mentioned above that on the

back side of 1st page of Ex.D.1 there is a clear endorsement of the

Sub Registrar that the plaintiff has admitted that he has executed

the sale deed.

20. As mentioned above the evidence of D.Ws.2 and 3 goes to

show that defendant paid Rs. 13,000/- to D.W.2 which he is turn

paid to the plaintiff. Thereafter he admitted the contents of the sale

deed which was read over to him, the witnesses also signed it and it

was taken for registration before the Sub Registrar where the

contents of the sale deed was admitted by plaintiff, the Sub

 50
Registrar has made endorsement in this regard, D.W.2 has put his

signature as identifying witness before the Sub Registrar. So all

these process goes to show that sale deed is legally registered.

The sale consideration is also paid to the plaintiff by the defendant

at the time of registration of sale deed. Hence there is no reason to

disbelieve the contention of defendant that he has paid Rs. 13,000/-

to the plaintiff and purchased the suit schedule property through

registered sale deed as per Ex.D.1. So I hold that defendant has

proved issue No.3, hence it is answered in the affirmative.

21. Issue No.4:- For the reasons given above, I pass the following

order.

ORDER

The suit of the plaintiff is hereby dismissed.

Looking to the relationship of the parties, there is no order as

to cost.

[Dictated to the stenographer, transcribed by her, the transcript by

her, the transcript corrected by me and pronounced in open court on
this the 27th day of September, 2005]
[T.Vithal Rao]

Civil Judge [SD] :Chikmagalur

ANNEXURE

List of witnesses examined for plaintiff:

P.W.1. Marulasiddaiah 07.11.2000

P.W.2: Shivanna 07.11.2000

List of witnesses examined for defendant:

 51
D.W.1 Mariyappa 02.03.2002

D.W.2 Mullundappa 01.06.2001

D.W.3 Rangaiah 01.06.2001

List of Exs. Marked for plaintiff

Ex.P.1 Sale Deed

Ex.P.2 Certified copy of sale deed

Ex.P.3 -do-

Ex.P.4 Certified copy of sale deed

//TRUE COPY//
 52
Annexure P-5(Colly)(i)

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

(Memorandum of Regular First Appeal Under Section 96 of the
Code of Civil Procedure)
R.F.A. No. 150/2006
IN THE COURT OF THE CIVIL JUDGE (SENIOR DIVISION),
CHIKMAGALUR
O.S. NO. 184/1998
IN THE COURT OF KARNATAKA AT BANGALORE
R.F.A NO. 150/2006

BETWEEN: RANK OF THE PARTIES IN

Sri. Marulasiddaiah, TRIAL COURT HIGH COURT

S/o Late Siddaiah,
Aged about 74 years,
R/o Belur Road,
Hiremagalur, Chikmagalur
Taluk,
Chikmagalur- 577101.

AND
1. Mariyappa,
S/o Late Siddaiah,
Since Dear by His LRs:

a) Smt. Devamma, DEFENDANT 1 1st RESPONDENT

W/o Late MAriyappa, (A)
Aged about 65 years,

b) Sri. Jayanna, DEFENDANT 2nd RESPONDENT

S/o Late Mariyappa, 1(B)
Aged about 42 years,

c) Sri. Rajkumar, DEFENDANT 3rd RESPONDENT

S/o Late Mariyappa, 1(C)
Aged about 45 years,
 53
d) Sri. Lokesh, DEFENDANT 4th RESPONDENT
S/o Late Mariyappa, 1 (D)
Aged about 43 years,

e) Sri. Jagadish DEFENDANT 5th RESPONDENT

S/o Late Mariyappa, 1(E)
Aged about 41 years,
f) Sri. Kantharaj, DEFENDANT 6th RESPONDENT
S/o Late Mariyappa, 1(F)
Aged about 37 years,

g) Rashmi, DEFENDANT 7th RESPONDENT

D/o Late Mariyappa, 1 (G)
Aged about 33 years,

h) Kavitha,
D/o Late Mariyappa, DEFENDANT 8th RESPONDENT
Aged about 31 years, 1(H)

All are R/O Hospital Road,

Hiremagalur, Chikmagalur
Taluk,
Chikmagalur District-
5771010.

THE APPELLANT BEGS TO SUBMIT AS FOLLOWS:-

1. The addresses of the parties for the purposes of service of

Summons, Court Notices, etc., issued from this Hon’ble Court

are correctly stated in the cause-title above. The Appellants

may also be served through his counsels Sri. K.V.

Narasimhan, Sri. Kempegowda, Advocates, No. 619/R, 36th

Cross, 2nd Block, Rajajinagar, Bangalore.

2. Aggrieved by the Judgment and decree passed by the

Learned Civil Judge (Sr. Dn), Chikmagalur, in O.S. No.

184/1998 on 27/09/2005, the appellant begs to prefer this

Regular First Appeal on the following facts and grounds.

 54
3. : FACTS IN BRIEF:

A. The plaintiff had filed a suit O.S No. 184/1998 on the file of

the Learned Civil Judge, (Sr.Dn), Chikmagalur, for the relief

of Declaration, permanent injunction in respect of land

measuring 22 guntas in Sy. No. 1002:12 of Hiremangalur

village, Chikmagalur Taluk.

B. The plaintiff contended that the defendant is his younger

brother. Sri. Siddaiah, father of plaintiff and defendant dies

in the year 1970. After demise of their father, the plaintiff

and defendant orally partitioned their family properties. The

defendant is residing separately in the house allotted to him

in the said oral partition. The plaintiff purchased the

schedule property under a registered sale deed dated

24/3/1975. The plaintiff is the absolute owner of said

property and he is residing in the schedule property by

constructing a farm house about 10 years back. In the year

1994, the defendant was facing financial difficulties and the

said defendant wanted to raise loan on the properties fallen

to his share. In this regard the defendants requested to

execute the registered partition deed in respect of their

father’s properties to enable him to raise the loan. The

plaintiff is an innocent, illiterate, village folk and he is not

having worldly knowledge except putting his signature in

 55
kannada. The plaintiff believing the words of the defendant

and reposing confidence and faith on him, under the

impression that the deed prepared by him is a partition

deed concerning the properties of his father, put his

signature on the document already got prepared by the

defendant. Even the plaintiff has paid a sum of Rs. 500/-

towards the registration charges of the partition deed. It

was in the year 1994.

C. Till the date of receipt of a summons in suit O.S. No.

438/1995 on the file of the 2nd additional Civil Judge (Jr.Dn),

Chikmagalur, the plaintiff was under the firm belief that the

deed executed was a partition deed. After enquiry with his

advocate the plaintiff came to know that the deed got

executed was not partition deed but a sale deed concerning

the portion of the schedule property. The defendant by

purchasing fraud, misrepresentation, coercion has

succeeded to get the sale deed (Dated 21/3/1994)

registered. The alleged sale deed dated 21/3/1994 has not

conferred any kind of interest, title or possession in favour

of the defendant, on the schedule property. Even the suit in

O.S. No. 438/1995 came to be dismissed after trial. After

the dismissal of the said suit, the defendant tried to

dispossess the plaintiff and caused interference. Briefly on

 56
the above grounds the plaintiff sought for declaration,

permanent injunction etc..

D. The defendant appeared through his advocate and filed his

written statement. The defendant admitted the oral partition

took place between himself and the plaintiff concerning

their father’s property. He also admitted the purchase made

by the plaintiff and his ownership. The defendant denied

that he had made request for execution of partition deed

and consequent execution of partition deed. The defendant

admitted the filing of suit in O.S. No. 438/1995 and its

dismissal. He further contended that the plaintiff has sold

the schedule property to him for Rs. 13,000/- and executed

sale deed. Briefly on the above grounds the defendant

sought for the dismissal of the suit.

E. The plaintiff examined himself as PW1 and a witness as

PW2 and got marked Ex.P1 to P10. The defendant

examined himself as DW1 and two witness as DW2 and

DW3 and got marked Ex.D1 to D5. Without appreciating the

evidence and other materials in property perspective, the

trial court dismissed the suit on 27/9/2005. Hence, this

appeal.
 57
4. The appellant has not filed any other appeal challenging the

impugned judgment and decree and no such appeal is

pending before this Hon’ble Court.

5. :GROUNDS:

a. The impugned judgment and decree of dismissal is opposed

to probabilities of the case, material on record and, as such,

unsustainable in law.

b. Though the parties to the suit have let in not only

documentary evidence but also oral evidence. There is hardly

any appreciation of the same by the lower court. Without

appreciating the same and not assessing the evidence, the

trial court erred in dismissing the suit.

c. The documents produced by the plaintiffs and the oral

evidence let in, clearly demonstrated that the alleged sale

deed is an outcome of fraud, mis-representation and

coercion. Contrary finding of the trial court is unjust and

illegal.

d. The trial court erred in dismissing the suit in its entirety. The

trial court lost sight of the fact that the defendants claim under

the alleged sale deed in only to an extent of 11 guntas, out of

total schedule property. It had resulted in mis-carriage of

justice.
 58
e. The plaintiff has also put up the construction on the suit

property and he is residing in it. This aspect has been lost

sight of by the trial court.

f. The trial court has failed to consider the dismissal of the suit

filed by the defendant in O.S. No. 438/95 and other

documentary evidence produced by the plaintiff.

g. The trial court erred in dismissing the suit on surmises and

conjectures.

h. The trial court failed to frame proper issues and the findings

given by the trial court on the issues framed is not correct. The

suit of the plaintiff ought to have been decreed.

i. Viewed from any angle the impugned judgment and decree of

the court below are unjust, illegal and unsustainable.

6. Valuing the suit at Rs. 1000/- for the relief of declaration and

injunction court fee of Rs. 25/- had been paid on the plaint

Under Section 24(c) of the Karnataka Court Fees and Suits

Valuation Act, 1958. Another court fee of Rs. 2.50 had been

paid on the plaint, for the purpose of setting aside the sale

deed, under section 38 of the Karnataka Court Fees and Suits

Valuation Act, 1958. Totally a court fee of Rs. 27.50 had been

paid on the plaint. Valuation being the same, the same court

fee of Rs. 27.50 has been paid on this appeal memo. For the
 59
purpose of the jurisdiction, the value of the court fee is

assessed at Rs. 4,40,000/-.

PRAYER

WHEREFORE, it is most humbly prayed that this Hon’ble

Court be pleased to :-

(a) Call for the records in O.S. No. 184/1998 on the file of the

Learned Civil Judge (Sr.Dn), Chikmagalur,

(b) Allow this appeal and set-aside the judgment and decree

dated 27/09/2005 passed in O.S. No. 184/1998 by the

Learned Principal Civil Judge (Sr.Dn), Chikmagalur,

(c) Grant such other and further reliefs that this Hon’ble Court

deems fit in the circumstances of the case, in the interest of

justice and equity.

Bangalore

DATE Nil ADVOCATE FOR APPELLANT

//True Copy//
 60
Annexure-A-5(Colly)(ii)

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

R.F.A.NO.150/2006
BETWEEN:
Sri Marula Siddaiah ...Appellant
AND
Sri Mariyappa since dead by his LRS ...Respondent

APPLICATION UNDER SECTION 151 OF THE CODE OF CIVIL

PROCEDURE, 1908:-
That for the reasons sworn to in the accompanying affidavit

the appellant most respectfully prays that this Hon’ble Court be

pleased to recall the order dated 29/9/2006 dismissing the above

appeal for non prosecution and to restore the above appeal to file, in

the interest of justice and equity.

Bangalore Advocate for Appellant

Date:-NIL
 61
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
R.F.A.NO.150/2006
BETWEEN:
Sri Marula Siddaiah ...Appellant
AND
Sri Mariyappa since dead by his LRS ...Respondent
AFFIDAVIT

I, K.V.Narasimhan, Advocate, No.619/R, 36th Cross, 2nd Block,

Rajajinagar, Bangalore, do hereby state as follows:-

1. I am representing the appellant in the above appeal. I am

conversant with the facts of the case.

2. The above appeal had been posted before his Hon’ble Court

on 29/9/2006 for orders on non compliance of office

objections. This Hon’ble Court was pleased to grant time by

conditional order. My junior colleague Sri. Siddappa, who was

new to profession had by mistake and lack of knowledge, not

properly noted the conditional order and kept the file along

with the admitted case files. Since matter of the year 2006 are

being listed for hearing and above appeal had not been listed

and even a suit has been instituted by the LRs of the

Respondent, about three days back the appellant came over

my office to know the progress in the above appeal.

Immediately enquire was made and at that time it was noticed

that in view of the conditional order the appeal has been

dismissed for non prosecution.

 62
3. The matter relates to immovable property and the valuable

rights of the appellant is involved. If the delay is not recall and

the appeal is not restored to file the appellant would suffer

irreparable loss and injury. The non compliance of conditional

order passed by this Hon’ble Court is not intentional but due to

the aforesaid un-intentional and bonafide cause.

WHEREFORE, it is most respectfully prayed that this Hon’ble

Court be pleased to recall the order dated 29/9/2006, as prayed for

in the accompanying application, in the interest of justice and equity.

Bangalore Deponent/Advocate

Date:-Nil

//True Copy//
 63

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION
I.A. NO. OF 2014
IN
REVIEW PETITION (CIVIL) NO. OF 2014
IN
SPECIAL LEAVE PETITION (Civil) NO.39170 OF 2013

IN THE MATER OF:

Mariyaapa
(Since dead by his Lrs.) & Ors. ….Petitioners

Versus

Sri. Marulasiddaiah ….Respondent

AN APPLICATION FOR EXEMPTION FROM FILING CERTIFIED

COPY OF IMPUGNED ORDER

To,
The Hon’ble Chief Justice of India and his Companion Justices
of the Supreme Court, New Delhi

The humble petition of the Review petitioner above named

MOST RESPECTFULLY SHOWETH:

1. That the present petition for Review has been filed by the
Review Petitioner herein, against the Impugned judgment and
final order dated 31.01.2014 in Special Leave Petition (C) No.
39170/2013 passed by this Hon’ble Court.

2. That the contents of the Review Petition be read as part and

parcel of this Application.
 64
3. That the certified copy of the impugned order has been mis-
placed and therefore is not readily available with the petitioner.

4. The petitioner undertakes to file certified copy of impugned order

in the event of a direction being issued by this Hon’ble Court.

5. It is submitted that irreparable injury and hardship would be

caused to the petitioner in the event this application is not
allowed and on the other hand no such prejudice would be
caused to the respondent.

PRAYER
In the circumstances herein above, it is therefore, most respectfully
and humbly prayed that this Hon’ble Court may graciously be
pleased to:
(a) exempt the Petitioner from filing certified copy of the
Impugned judgment and final order dated 31.01.2014 in
Special Leave Petition (C) No. 39170/2013 passed by this
Hon’ble Court.

(b) PASS any other or such further orders as may be deemed fit
on the facts of the present case.

AND FOR THIS ACT OF KINDNESS YOUR HUMBLE

PETITIONER AS IN DUTY BOUND SHALL EVER PRAY.

FILED BY:

BALAJI SRINIVASAN
Advocate for Petitioners
FILED ON:
 65
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
I.A. NO. OF 2013
IN
REVIEW PETITION (CIVIL) NO. OF 2014
IN
SPECIAL LEAVE PETITION (Civil) NO.39170 OF 2013

IN THE MATER OF:

Mariyaapa
(Since dead by his Lrs.) & Ors. ….Petitioners

Versus

Sri. Marulasiddaiah ….Respondent

AN APPLICATION FOR CONDONATION OF DELAY

To,
The Hon’ble Chief Justice of India and his Companion Justices
of the Supreme Court, New Delhi
The humble petition of the Review petitioners above named
MOST RESPECTFULLY SHOWETH:
1. That the present petition for Review has been filed by the
Review Petitioners herein, against the Impugned judgment and
final order dated 31.01.2014 in Special Leave Petition (C) No.
39170/2013 passed by this Hon’ble Court

2. That the contents of the Review Petition be read as part and

parcel of this Application.

3. It is submitted that the impugned order was passed on

30.09.2013 and that thereafter the order was communicated to
the Petitioner through his local advocate. That consequently, the
Petitioner took advice of the local counsel and decided to file a
review petition against the said order. That for the same, a fresh
 66
affidavit and vakalat was required to be sent by the Petitioner
from Bangalore. Accordingly steps were taken to file the instant
Review Petition.

4. That the duly signed and notarized affidavit and vakalth was
sent but there were certain typographical errors in the said
affidavit and hence the same was required to be resent to the
counsel in Delhi. That it is in the above circumstances that some
delay has occurred in filing of said Review petition.

5. The delay caused has been due to genuine reasons and is not
deliberate. It is prayed that it is in the interest of justice that the
delay be condoned.
PRAYER
In the circumstances herein above, it is therefore, most respectfully
and humbly prayed that this Hon’ble Court may graciously be
pleased to:
(a) Condone delay of ____days in filing Review Petition against
Impugned judgment and final order dated 31.01.2014 in
Special Leave Petition (C) No. 39170/2013 passed by this
Hon’ble Court.
(b) PASS any other or such further orders as may be deemed fit
on the facts of the present case.
AND FOR THIS ACT OF KINDNESS YOUR HUMBLE
PETITIONER AS IN DUTY BOUND SHALL EVER PRAY.
FILED BY:

BALAJI SRINIVASAN
Advocate for Petitioner
FILED ON: