- 1 - NC: 2025:KHC-D:2635 RSA No. 2843 of 2006 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 06TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 2843 OF 2006 BETWEEN: 1. SRI. RAMU S/O. NARAYAN GHADI, AGE: 80 YEARS, OCC: AGRICULTURE, R/O: ZAD-NAVAGE, TQ: KHANAPUR, DIST: BELAGAVI- 591302. 2. SRI. SATERI S/O. NARAYAN GHADI, SINCE DECEASED BY HIS LRS. 2A. SRI. ARJUN S/O. SATERIGHADI, AGE: 54 YEARS, OCC: AGRICULTURE, R/O: ZADNAVAGE, HEBBAL, BELAGAVI. 2B. SRI. VASANT S/O. SATERIGHADI, AGE. 52 YEARS, OCC: AGRICULTURE, R/O: ZADNAVAGE, HEBBAL, BELAGAVI. 2C. SMT. VITHABAI W/O. NAMDEV KARLE, AGE. 49 YEARS, OCC: AGRICULTURE, R/O: KINIYE, HUKKERI, BELAGAVI. 2D. SMT. KAVERI W/O. SHANTARAMGOVEKAR, AGE: 47 YEARS, OCC: AGRICULTURE, R/O: KINIYE, HUKKERI, BELAGAVI. 2E. SRI. SHIVAJI S/O. SATERIGHADI, AGE: 43 YEARS, OCC: AGRICULTURE, R/O: ZADNAVAGE, HEBBAL, BELAGAVI. …APPELLANTS (BY SRI. RAMESH N. MISALE, ADVCOATE FOR A2(A TO E) Digitally signed by V N BADIGER Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:2635 RSA No. 2843 of 2006 AND: 1. SMT. SOYARABAI W/O. SHIVAJIRAOGAVADE @ PATIL, AGE ABOUT: 78 YEARS, OCC: AGRICULTURE, R/O: ZAD-NAVAGE, TQ: KHANAPUR, DIST: BELAGAVI- 591302. 2. SMT. SHARADA W/O. PATRANGNILAJKAR, AGE ABOUT: 34 YEARS, OCC: AGRICULTURE, R/O: ZAD-NAVAGE, TQ: KHANAPUR, DIST: BELAGAVI- 591302. …RESPONDENTS (BY SRI C.R. GOULAY AND SRI VIDYANAND V. ARALI, ADVOCATES FOR C/R1) ------- THIS RSA IS FILED UNDER SECTION 100 OF CPC., PRAYING TO CALL FOR RECORDS IN R.A.NO. 218 OF 1999 FROM THE COURT OF IIND ADDL. CIVIL JUDGE (SR.DN.) BELGAUM, ITINERARY AT KHANAPUR AND ON PERUSAL OF THE SAME BE PLEASED TO SET ASIDE THE JUDGMENT AND DECREE DATED 28.07.2006 CONSEQUENTLY SETTING-ASIDE JUDGMENT AND DECREE DATED 13.07.1999 IN O.S. NO. 98/1990 PASSED BY THE COURT OF ADDL. CIVIL JUDGE (JR.DN.) KHANAPUR, IN THE INTEREST OF JUSTICE AND EQUITY. IN THIS APPEAL ARGUMENTS BEING HEARD, RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH CAV JUDGMENT 1. This appeal is filed by the plaintiffs challenging the judgment and decree dated 28.07.2006 passed in RA No.218 of 1999 on the file of the II Additional Civil - 3 - NC: 2025:KHC-D:2635 RSA No. 2843 of 2006 Judge, (Sr.Dn), Belgaum (Itinerating at Khanapur), dismissing the appeal and confirming the judgment and decree dated 13.07.1999 passed in OS No.98 of 1990 on the file of the Additional Civil Judge (Jr.Dn.) and JMFC, Khanapura dismissing the suit of the plaintiffs. 2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the Trial Court. 3. The plaint averments are that the suit schedule property is an agricultural land bearing Sy.No.6/2A measuring 01 acre, 22 guntas situate at Zad-Navage village, Khanapur Taluk. It is the case of the plaintiffs that, originally the land belonging to the father of the plaintiffs-Narayan Ramu Ghadi. It is further stated that, the plaintiff No.2 offered to sell the suit schedule property to the defendant with a condition that, the - 4 - NC: 2025:KHC-D:2635 RSA No. 2843 of 2006 defendants should re-convey the schedule property. The said proposal made by the plaintiffs was agreed by the defendants and accordingly, the plaintiffs have executed the registered Sale Deed in favour of defendants on 06.02.1975 in respect of the suit schedule property and received sale consideration of Rs.8,500/-. It is further stated in the plaint that, the defendants were put into possession. It is also stated in the plaint, that on the very same day another registered Sale Agreement was executed in the style of re-conveyance deed, wherein, the defendants agreed to sell the suit schedule property in favour of the plaintiffs. The sale consideration was Rs.8,500/-. It is the grievance of the plaintiffs that in view of the conditional sale of the suit schedule property, the plaintiffs approached the defendants during September, 1989 that, the plaintiffs are ready and willing to repay the Rs. 8500/- to the defendants and - 5 - NC: 2025:KHC-D:2635 RSA No. 2843 of 2006 as such, requested them to comply with the terms of the Agreement of Sale and same was denied by the defendants. Hence, the plaintiffs caused notice to the defendants calling upon the defendants to re-convey the suit schedule property. However, the defendants have not adhered to the condition of re-conveyance and as such, plaintiffs have filed OS No.98 of 1990 seeking relief of specific performance and possession of the suit schedule property. 4. After service of summons, the defendants entered appearance and filed detailed written statement denying the averments made in the plaint. It is the specific case of the defendants that, the defendants have purchased the suit schedule property from the plaintiff No.2 and his deceased father Narayan Ramu Ghadi as per registered Sale Deed dated 06.02.1975 for valuable consideration of Rs.8,500/-. The defendants are in possession of the - 6 - NC: 2025:KHC-D:2635 RSA No. 2843 of 2006 suit schedule property, however, denied the execution of the Re-Conveyance Deed/Agreement of sale dated 06.02.1975. Accordingly, defendants sought for interference of this Court. 5. On the basis of the rival pleadings, the Trial Court has formulated issues for its consideration. 6. In order to establish their case, plaintiffs have examined four witnesses as PW1 to PW4 and got marked 09 documents as Exs.P1 to P9. On the other hand, defendants have examined one witness as DW1 and produced 03 documents as Exs.D1 to D3. 7. The trial Court, after considering the material on record, by its judgment and decree dated 13.07.1999 dismissed the suit of the plaintiffs and being aggrieved by the same, the plaintiffs have preferred Regular Appeal in RA No.218 of 1999 on the file of the First Appellate Court. The said appeal was resisted by the - 7 - NC: 2025:KHC-D:2635 RSA No. 2843 of 2006 defendants. The First Appellate Court, after re- appreciating the facts on record, by its judgment and decree dated 28.07.2006 dismissed the appeal and confirmed the judgment and decree passed by the trial Court in OS No.98 of 1990. Being aggrieved by the same, the appellants/plaintiffs have preferred this Regular Second Appeal under Section 100 of CPC. 8. This Court vide order dated 13.12.2007 has formulated the substantial question of law which reads as under: i) Whether the courts below were justified in dismissing the suit on the ground that the suit document of re-conveyance cannot be acted upon ? 9. I have heard Sri Sri. Ramesh N. Misale, learned counsel for the appellants and Sri. Vidyanand V. Alavi, learned counsel appearing for the respondents. - 8 - NC: 2025:KHC-D:2635 RSA No. 2843 of 2006 10. Sri. Ramesh N. Misale, learned counsel for the appellants contended that, both the courts below have misconstrued the Deed of Re-Conveyance dated 06.02.1975 and the said document is registered and further the defendants have admitted the execution of the Deed of Re-Conveyance and therefore, he argued that, interference is called for in this appeal. 11. Nextly, it is contended by the learned counsel appearing for the appellants that, the both the courts below have committed an error in construing the evidence of attesting witness-PW2 despite the fact that, the PW2 is the attesting witness to Ex.P2- Agreement also and therefore, sought for interference of this Court. It is the categorical argument of the learned counsel appearing for the appellants that, the defendant No.1 did not step into the witness box and therefore, adverse inference be drawn against the defendants and as such, sought for interference of this - 9 - NC: 2025:KHC-D:2635 RSA No. 2843 of 2006 Court. In order to buttress his arguments, he place reliance on the judgment of the Hon’ble Supreme Court in the case of Narbada Devi Gupta vs. Birendra Kumar Jaiswal and another reported in (2003) 8 SCC 745 and in the case of Kuppuswamy Chettiyar vs. ASPA. Arumugam Chettiayar and Another reported in AIR 1967 SC 1395 and contended that, the impugned judgments are contrary to law. In respect of the absence of the plaintiffs to adduce evidence, learned counsel referred to the judgment of the Hon’ble Supreme Court in the case of Iswar Bhai C. Patel vs. Harihar Behera and Another reported in AIR 1999 SC 1341. He also refers to the judgment of the Hon’ble Supreme Court in the case of Manjabai Krishna Patil (D) by LR’s vs. Raghunath Revaji Patil and Another reported in (2007) 12 SCC 427 and argued that, the - 10 - NC: 2025:KHC-D:2635 RSA No. 2843 of 2006 impugned judgment and decree passed by the Courts below requires interference of this Court. 12. Per contra, Sri. Vidyanand V. Alavi, learned counsel for the respondents argued that, the courts below have come to concurrent conclusion, based on the oral and documentary evidence which cannot be unsettled in this appeal. In this regard, he refers to the judgment of the Hon’ble Supreme Court in Doddanarayana Reddy (D) by LR’s and Others vs. C Jayarama Reddy (D) by LR’s and Others reported in (2020) 4 SCC 649 and submitted that the appeal requires to be dismissed. 13. In the light of the arguments advanced by the learned counsel appearing for the parties, it is not in dispute that, the plaintiffs are the owner of the schedule property and plaintiff No.1 and father of the plaintiffs–Narayana Ramu Ghadi sold the schedule - 11 - NC: 2025:KHC-D:2635 RSA No. 2843 of 2006 property in favour of the defendants as per the registered Sale Deed dated 06.02.1975 for total consideration of Rs.8,500./- (Ex.P3). It is the case of the plaintiffs that, on the very same day the defendants got executed the registered Agreement of Sale/ Re-Conveyance Deed (Ex.P2), agreeing to sell the suit schedule property in favour of the plaintiffs within December 1989. It is the case of the plaintiffs that the Sale Deed executed as per Ex.P3-Sale Deed is a conditional sale to resell the suit schedule property to the plaintiffs. In this regard, it is the duty of the plaintiffs to prove the execution of Ex.P2-Sale Deed and on the other hand, the defendants dispute the execution of the Ex.P2-Sale Deed in the written statement. In this regard, on careful examination of the deposition of PW1, wherein, in the examination- in-chief, it is stated that, the Sale Deed at Ex.P3 was executed as the plaintiffs have financial difficulty. It is - 12 - NC: 2025:KHC-D:2635 RSA No. 2843 of 2006 also deposed in the cross-examination that, the contents of Ex.P3 was read over to the defendants before the registration of the Sale Deed. PW2 is the attesting witness to both Ex.P2 and Ex.P3. PW2, is a Teacher, admits the execution of both the documents, however, in the cross-examination he deposed that, there was no intention to execute the Agreement Of Sale /Re-Conveyance Deed and same was not read over to the parties. It is relevant to extract the said deposition which reads as under: “ಆ ನಂತರ ಂದ ಯವರ ಕೕಯ ೕ. ಆ ಸದ ಂದ ಯವರ ಕೕಯ ಖೕ ಗದವ ತ ಂದ ವ ಉ" ೕಶಂದ ೕ. ಸದ ಕೕಯ $ಡ ನಮ' ()( *-2 ಂದ + ಇ ಎಂ+ ./ ಕಲ1 2 3ಡ4 ಸದ ಂದ ಯವರ ಕೕಯ ಖೕ ಗದ56 7ರ ಸ9 :; ೕ<ಂ+ =ೕ>3ಂ ಸ9 ?" ೕ@. ()( *-2 ರ ಬEದ ಪ ಠರ ವH ವI ಆJKೕ ಇಲ Lೕ ಮM; ಅದರ ಬEದ ಮO$/ 3PQ ಇKೕ ಅ + ನನ' 9R ಇ/ಲ . ಆ ವಸ ಆJದ ಎ4 ವH ವIರ 5ೕವಲ ಖೕ ಗದದ ಸಂಬಂಧTJ ಆJ/ತ; .” - 13 - NC: 2025:KHC-D:2635 RSA No. 2843 of 2006 14. PW3, is the son of scribe to the document, who has identified the signature of his father in Ex.P2 and Ex.P3. PW4, is the Sub-Registrar deposed about the execution of the deeds. Perusal of the deposition of DW1 makes it clear that wife of DW1 –defendant No.1 in the suit is illiterate and having no worldly knowledge to understand the Agreement of Sale/Re- Conveyance Deed. That apart, the sale consideration in Ex.P2 and Ex.P3 is Rs.8,500/- and if at all Ex.P2- Agreement of Sale/Re-Conveyance Deed is executed by the defendants then, the sale consideration would not have been the same after fifteen years of execution of the Sale Deed produced at Ex.P3. Therefore, it could be concluded that, undoubtedly, the sale consideration would be more than Rs.8,500/-. Taking into consideration, the finding recorded by the Trial Court and evidence of PW2, and same would substantiate the fact that the contents of Ex.P2- - 14 - NC: 2025:KHC-D:2635 RSA No. 2843 of 2006 Agreement was not made known to the defendants at the time of execution of the Ex.P2. It is well established principle in law that, it is the duty of the parties to prove the execution of the deed produced and marked before the Trial Court and mere production of the document, in the absence of proving the execution of the deed, cannot be accepted in the eye of law. 15. Taking into consideration the appreciation of evidence made by both the courts below, particularly, finding recorded by the Trial Court on Issue No.1, I find force in the submission made by the respondents that the execution of Ex.P2-Agreement is registered under suspicious circumstances and accordingly, the finding recorded by the Trial Court requires to be confirmed. It is also pertinent to mention here that, if at all the Deed of Re-Conveyance is being executed by the defendants voluntarily then there must be a recital - 15 - NC: 2025:KHC-D:2635 RSA No. 2843 of 2006 in the Sale Deed with regard to Deed of Re- Conveyance and in the absence of the same, the finding recorded by the both the courts below is required to be confirmed. Though the learned counsel appearing for the appellants place reliance on the judgments referred to above, however, the facts in those cases are not applicable to the facts on record as PW2 is the attestor to both the documents, deposed about the suspicion in execution of the Agreement of Sale/Deed of Re-Conveyance. Therefore, none of judgments referred to by learned counsel appearing for the appellants be made applicable to the case on hand. Therefore, I do not find any material irregularity or perversity in the judgments and decree passed by the Courts below, concurrently against the plaintiffs. Accordingly, the substantial question of law framed above favours the - 16 - NC: 2025:KHC-D:2635 RSA No. 2843 of 2006 defendants. In the result, the Regular Second Appeal is liable to be dismissed. Sd/- (E.S.INDIRESH) JUDGE SB