NINGANAGOUDA Vs. KALUBAI

JUDGEMENT

(1.) Plaintiff is in appeal questioning the correctness and legality of the judgment and decree passed in R.A. No. 45/2009 by the III Additional District Judge, Dharwad dated 31/08/2010. The parties are referred to as per their rank before the Trial Court.

(2.) Brief facts of the case leading to filing of this appeal are as under Appellant instituted a suit in O.S. No. 150/2008 on the file of III Additional Civil Judge(Sr. Dn.) Dharwad for the relief of declaration and consequential relief of perpetual injunction in respect of suit property. It was contended, in the suit that Plaintiff has become absolute owner in possession of suit property on the strength of an unregistered sale deed executed by the father of the Defendant namely late Sri. Anantappa Mahadevappa Mulagund on 05.09.1971 and when the Plaintiff sought for change of his name in the revenue records pursuant to earlier representation which had not been done by the Tahasildar in spite of representation given, Tahasildar gave the endorsement on 01.08.2008 directing the Plaintiff to file a civil suit and obtain appropriate order from the competent Court of law, Plaintiff filed the suit in question and sought for relief stated herein above. It is further contended that Defendants have not appeared in the suit even after due service of suit summons and Defendants came to be placed exparte and after recording evidence of the Plaintiff on 20.12.2008 suit came to be decreed on the same day by the judgment and Decree of the Trial Court.

(3.) Defendants being aggrieved by the above judgment and decree passed by the Trial Court preferred R.A. No. 45/2009 before III Additional District Judge, Dharwad and Smt. Shamala daughter of deceased Anantappa Mulagund, who was not a party to the suit (O.S. No. 150/2008) also filed an appeal in R. A. No. 113/2009 before the same Court. It was contended before the Lower Appellate Court that suit summons were not served on the Defendants and it was taken by the Trial Court that summons was duly served on Defendants. It was also contended that on account of non-service of suit summons Defendants could not appear and contest the matter before Trial Court and as such judgment and Decree passed by the Trial Court was liable to be set aside. It was also contended that alleged sale deed dated 05.09.1971, which was unregistered sale deed was inadmissible in evidence and as such Trial Court ought not to have decreed the suit. It was also contended that suit schedule property having been purchased by the Defendants' father in the year 1966 for a total consideration of Rs. 4,000/- under a registered sale deed dated 17.06.1996, it could not have been sold by the deceased for Rs. 99/- in the year 1971. As such it was contended that unregistered sale deed dated 05.09.1971 was forged document and these contentions came to be refuted by the Plaintiff before the Lower Appellate Court contending that it was specifically mentioned in unregistered sale deed that consideration was less than Rs. 100/- and as such the document in question was not required to be registered and suit summons were duly served on Defendant No. 2 and he being eldest male member of the family Defendants had to prove that suit summons was not duly served on other Defendants. In sofar as other contentions raised by the Defendants (Respondents) in the appeal before Lower Appellate Court it is contended that same ought not to have been considered by the Lower Appellate Court since no written statement was filed by Defendants. It is also contended that once document is marked, it was not open for the Lower Appellate Court to examine the correctness or otherwise of such marking and as such the order of remand passed by the Lower Appellate Court is erroneous and as such Appellant seeks for allowing of the appeal and setting aside the order of remand.