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Judgment
K.L. Manjunath, J.—The appellants who are plaintiffs in O.S. No. 233/2009 (old No. 59/1998) on the file of the 1st Additional District Judge, Davangere, have come up in this appeal being aggrieved by the dismissal of the suit filed to declare that the sale deeds dated 12-8-1946 and 7-9-1946 registered before Sub-Registrar, Davangere, in respect of the suit schedule property be cancelled as null and void and further to declare that the sale deeds dated 4-11-1946 registered before Sub-Registrar, Davangere executed by late K.T. Jambanna in favour of defendant No. 1 does not bind them and to direct the revenue officers to change the revenue entries to their name in respect of the suit schedule property and also for a perpetual injunction restraining defendant No. 1 from developing, alienating or meddling in any manner with the suit schedule properties.
Heard the learned counsel appearing for the parties. According to the plaint averments, the suit schedule properties were owned by late Bheemanna @ Hucha Bheemanna and the same was granted to him by the Government of Mysore in 1940. Bheemanna ,@ Hucha Bheemanna died in the year 1944 leaving behind him his brother Sri Kariyappa and Kariyappa''s son by name Sri Durgappa. The plaintiffs are the children of Durgappa.
The 1st defendant is a Private Limited Company engaged in manufacturing cloths and cotton products which was established 60 years prior to the institution of suit. One Sri Jambanna, son of Tirukappa had purchased the suit schedule property for and on behalf of the 1st defendant and after the death of Jambanna, the property has been transferred to the 1st defendant''s name. According to them, recently they came to know that fraud was committed by Jambanna in obtaining the two sale deeds from Bheemanna @ Hucha Bheemanna and their grand-father Kariyappa and that the sale deeds executed by them in favour of Jambanna does not bind them since Bheemanna @ Hucha Bheemanna was not alive on the date of execution of the sale deeds in favour of Jambanna.
According to the plaint averments, Bheemanna @ Hucha Bheemanna died on 20th February, 1944 and the two sale deeds came into existence on 12-8-1946 and 7-9-1946 respectively two years after the death of Bheemanna @ Hucha Bheemanna. It is also their case that Bheemanna @ Hucha Bheemanna was a mentally challenged person and was unmarried. After the death of Bheemanna @ Hucha Bheemanna all his properties were succeeded by their grand-father Kariyappa and father Durgappa and their grand father and father Durgappa were illiterates and addicted to liquor and making use of illiteracy and addiction to liquor by Kariyanna and Durgappa, Jambanna managed to get the sale deeds in his favour even though Bheemanna @ Hucha Bheemanna was not alive. Contending that they came to know of forgery impersonation and fraud committed by Jambanna, contending that after the death of Bheemanna @ Hucha Bheemanna the plaintiffs being the grand children of the younger brother of Hucha Bheemanna succeeded to the properties as reversioners the suit came to be filed.
The suit was contested by the 1st defendant Company. They denied that Bheemanna @ Hucha Bheemanna died in the year 1944 and that the death certificate relied upon by the plaintiffs is created and concocted by the plaintiffs to achieve their ends. The death certificate relied upon by the plaintiffs does not pertain to Bheemanna @ Hucha Bheemanna. According to the defendants, the 1st defendant Company is in existence for over 60 years. According to them, Jambanna was not an agent of the 1st defendant and Jambanna in his individual capacity had purchased the property and from Jambanna the 1st defendant purchased the property under a registered sale deed and that the defendant No. 1 has become the absolute owner from the date of purchase of the suit property from Jambanna.
The 1st defendant also denied the allegation that Bheemanna @ Hucha Bheemanna died on 20th February, 1944 and also denied that he was a mentally challenged person They also denied that the plaintiffs are the only legal heirs of Bheemanna @ Hucha Bheemanna and his family. It was contended by them that the suit is barred by limitation and that the plaintiffs have no cause of action to file the suit.
The other defendants who are none other than the mother and sister of the plaintiffs have supported the case of the plaintiffs.
Based on the above pleadings the following Issues were framed by the trial court:-
"1. Whether the plaintiffs prove that, Hucha Bheemanna was Moola Hiduvalidar of suit property and died on 20.4.1944?
Whether the plaintiffs further proves that the deceased Hucha Bheemanna became lunatic during the later part of his life?
Whether the plaintiffs further prove that they are the Class I heir of deceased Bheemanna?
Whether the plaintiffs further prove that defendants obtained the sale deed of suit schedule property by fraud and misrepresentation?
Whether the plaintiff proves that the suit is in time?
Whether the court fee paid is proper?
Whether the plaintiffs are entitled for the decree sought?
What order or decree?
Addl Issue dated 10.07.2003:
Whether the plaintiffs further prove that the defendants obtained sale deed of suit schedule property by impersonation?
Addl. Issue dated 22.07.2005:
Whether this court has no jurisdiction to entertain the suit?"
To prove their respective contentions on behalf of the plaintiffs 4 witnesses were examined. The 1st plaintiff Thippeswamy was examined as P.W. 1 and Gangamma the mother of the plaintiff was examined as P.W. 5. They also relied upon the evidence of PWs 2 to 4, to show that they are in possession of the property and relied upon Exs. P-1 to P-10. On behalf of the 1st defendant one K.S. Kotrappa was examined as D.W. 1 and he relied upon Exs. D-1 to D-8. The trial court after appreciating the entire evidence held Issue Nos. 1 to 5 and 7 in negative and Additional Issues 2 & 3 also in negative and ultimately the suit came to be dismissed. Challenging the legality and correctness of the same, the present appeal is filed.
We have heard Mr. S.V. Prakash, the learned counsel appearing for the appellants and Mr. G. Balakrishna Shastry, the learned counsel appearing for the respondents. According to Mr. Prakash, the learned trial Judge has committed an error in holding that the plaintiffs have failed to prove the death of Hucha Bheemanna as 20th February, 1944 and further committed an error in holding that the plaintiffs have failed to prove that Bheemanna @ Hucha Bheemanna was a lunatic person.
The appellants'' counsel further contends that the trial court also committed an error in not treating the plaintiffs as Class-I heirs of deceased Bhemanna @ Hucha Bheemanna. It is also contended that the trial court has committed an error in holding that appellants have failed to prove the fraud or misrepresentation in obtaining the sale deeds from deceased Bheemanna @ Hucha Bheemanna and Kariyappa the grand father of the plaintiffs. The trial court committed an error in holding the Additional Issues 1 & 2 in negative.
According to him, the plaintiffs have successfully proved that Bhemanna @ Hucha Bheemanna died intestate and he died in the year 1944, is two and half years prior to the execution of the sale deed by late Durgappa, the father of the appellants. According to him, even though the plaintiffs have produced the death certificate of Bhemanna @ Hucha Bheemanna as per Ex. P-2, the trial court did not consider the validity of Ex. P-2 issued by the Municipal authorities a public document. He further submits that when respondent No. 1 has not produced any evidence to show the actual death of Bhemanna @ Hucha Bheemanna and when he did not prove the death of Bhemanna @ Hucha Bheemanna after the execution of the sale deeds the trial court was required to accept the contention of the plaintiffs. He further submits that the trial court did not consider the execution of the sale deeds by a dead person and it was for defendant No. 1 to prove that the registered sale deeds infact were executed by Bheemanna @ Hucha Bheemanna during his lifetime. In the circumstances, he requests the Court to allow the appeal and set aside the finding of the trial court.
Per contra, Mr. Shastry, the learned counsel appearing for respondent No. 1 submits that merely because Ex. P-2 is produced by the plaintiffs the Court cannot hold that the plaintiffs have discharged the burden casted on them According to him, it is for the plaintiffs to contend that Bheemanna @ Hucha Bheemanna died on 20th February 1944. In order to show that he died on 20th February, 1944 no other evidence is placed by them. Even though they have pleaded fraud have failed to prove that their father Durgappa and their grand-father Kariyappa were relatives and they were addicted to all vices and in connivance with Durgappa and Kariyappa the sale deeds of the year 1946 came into existence. According to them, the plaintiffs could not have filed the suit challenging the sale deeds of 1944 because they were not born on the date of execution of the sale deeds and plaintiffs'' father or their grand-father did not challenge the execution of the sale deeds. According to him, when the plaintiffs'' father and the grand-father executed the registered sale deeds the plaintiffs were not even born and that they cannot attack the sale deeds. Therefore, he contends that the suit is hopelessly barred by time. According to him, the plaintiffs and defendant No. 1 have produced the original sale deeds of 1944 executed by Bheemanna @ Hucha Bheemanna and Kariyappa in favour of Jambanna and the original sale deed executed by Jambanna in favour of the 1st defendant as Exs. D-6 to D-8. When these documents are of more than 30 years old and when the original documents of 30 years old is produced from the proper custody in view of Section 90 of the Evidence Act a presumption is attached to the sale deeds. Therefore he requests the Court to dismiss the appeal.
Having heard the learned counsels we have to consider the following points in this appeal:-
1) Whether the appellants have proved that Bheemanna @ Hucha Bheemanna died on 20th February, 1944?
2) Whether the Jambanna purchased the suit schedule property under Exs. D-6 and D-7 dated 7-9-1946 and 12-8-1946 from Bheemanna @ Hucha Bheemanna along with their grand-father Kariyappa by committing fraud?
3) Whether the suit filed by the plaintiffs 60 years after the execution of the sale deeds is barred by limitation?
Admittedly, none of the plaintiffs were born on the date of execution of the sale deeds on 7-9-1946 and 12-8-1946 by late Bheemanna @ Hucha Bheemanna along with his brother Kariyappa, the grand father of the appellants. Admittedly, the suit is filed after the death of their grand-father and their father. The appellants are not disputing that the sale deeds were executed not only by Bheemanna @ Hucha Bheemanna but also Kariyappa their grand-father. When Kariyappa did not challenge the same during his lifetime contending that by committing fraud, the sale deeds were obtained by late Jambanna no court can accept the contention of the plaintiffs, the circumstances under which the sale deed came into existence. Even though the 1st plaintiff has been examined as P.W. 1 he does not have personal knowledge of the same. Even plaintiffs 2 to 4 have no personal knowledge about the sale transaction. They have mainly relied upon the evidence of P.W. 5 their mother who is the 2nd defendant in the suit. Gangamma''s evidence is also of no use since she was not married on the date of sale and she had no personal knowledge of the sale transactions. Therefore at the first instance the plaintiffs have failed to prove that Bheemanna @ Hucha Bheemanna died two years prior to the execution of the sale deeds. They have not placed any material to show that Ex. P-2 pertains to elder brother of their grand-father Bheemanna @ Hucha Bheemanna and they have also not explained how their grand-father Kariyappa can execute a sale deed along with Bheemanna @ Hucha Bheemanna as per Exs. P-6 and P-7 in 1946. If really Hucha Bheemanna had died in the year 1944. The trial court has also considered the presumption attached to Exs. D-6 to D-8 to show that the plaintiffs are in lawful possession of the property and by exercising the act of ownership inspite of Exs. D-6 to D-8 no material is placed by them before the trial court. As a matter of fact, the entire property purchased by the 1st defendant is being used for commercial activity. When the appellant''s have failed to place proper material and documents, the trial court is right in coming to the conclusion that the plaintiffs have failed to prove the death of Huchappa @ Hucha Bheemanna and that the sale deeds as per Exs. D-6 and D-7 were concocted by the 1st defendant by late Jambanna alone with the grand-father Kariyappa. When the plaintiffs are not disputing the execution of Ex. D-6 and 7 by their grand-father Kariyappa, the burden was on them to show how the grand-father could execute a sale deeds when his brother Bhemanna @ Hucha Bheemanna had died two years prior to the execution of sale deeds. Therefore we do not see any merit in this appeal. The trial court has rightly held all the Issues against the appellants and the father of the 1st defendant. In the circumstances, the points formulated for consideration are answered against the appellants. In the result, the appeal is dismissed.