GURUBASAPPA Vs. GURULINGAPPA

JUDGEMENT

(1.) The important question to be decided in this appeal is which the document executed by the plaintiffs -- appellants father Siddappa in favour of the defendant -- respondent is a 'Viswasi Bai' and not an out and out sale as contended by the appellants. The plaintiffs- appellants were successful in the trial Court which decreed their suit for declaration of their title and perpetual injunction in respect of the suit properties. But the judgment and decree so passed in their favour were reversed by the learned District Judge, Gulbarga in Appeal No. 35/4 of 1953-54. The plaintiffs filed a second appeal before the Hyderabad High Court which , on transfer, was heard by a Bench of this Court consisting of His Lordship justice M.A. Ali khan and myself. By an order dated 27th day of February 1959 the case was remanded under the provisions of Order 41 Rule 25 CPC for the determination of the market value of the disputed Land at the time when the sale deed Exhibit. A-1 was executed. Thereupon, the learned Munsiff, after recording fresh evidence and also taking into consideration the evidence on the points already recorded gave his finding that the plaintiffs - appellants have failed to prove that the value of the suit Land at the time of the sale was Rs. 80/- to Rs. 100/- per acre as alleged by them, but on the other hand, excluding the uncultivable portion about 3 to 4 acres thereof the price per acre was Rs. 25/- to Rs. 30/- in 1340 F viz., the year of the sale of the property in favour of the defendant -respondent. This finding of the learned Munsif if also challenged by Sri Chandarki the learned advocate appearing for the appellants.

(2.) The facts leading up to this appeal are briefly as follows: the plaintiffs- appellants allege that the western half portion measuring 13 acres 11/2 guntas in Survey No. 67 of Ankalga Village, Afzalpur Taluka is their ancestral property which is in their possession and enjoyment. On 12.10.1950 the defendant --respondent interfered with the plaintiffs possession of the suit Land. Hence their suit for declaration of title and perpetual injunction against the defendant --respondent. The defendant --respondent, on the other hand, alleged that he is the rightful owner of the suit property inasmuch as the same was sold to him by the registered sale deed dated 11th 0 1340F by the plaintiffs father for a valuable consideration of Rs. 250/-. The defendant -respondent was put in possession of the suit land in pursuance of the condition in the sale deed. Hence the plaintiffs have no right, title or interest in the suit property. In reply, however, the plaintiffs- appellants allege that the sale deed executed by their father Siddappa was not actually a sale deed but was a 'Viswasi Bai'; that the defendant --respondent delivered possession of the suit Land to the plaintiffs in 1357F as per a decision of the panchayathi on the plaintiffs paying a sum of Rs. 250/- the amount due to the defendant -respondent in respect of the suit Lands and the plaintiffs are in possession thereof ever since. But the defendant- respondent has denied both the panchayathi as well as the payment of Rs. 250/- as alleged by the plaintiffs. Hence the important question for determination is regarding the ownership of the suit Land : whether the defendant is the owner thereof as per the terms of the registered sale deed dated 11th Ardebehast 1340 F and marked as Exhibit A-1 in the case or whether the said sale deed is what is called a 'Viswasi Bai' as alleged by the plaintiffs -respondents.

(3.) As per the sale deed exhibit A-1, plaintiffs father Siddappa sold the suit Land to the defendant -respondent and put him in possession thereof with a stipulation in the said deed that henceforth neither he nor his heirs have any right, title or interest in the said lands. In other words, a close scrutiny of its terms, indicates, that it envisages an absolute sale. Both the learned advocates for the plaintiffs -appellants as well as for the defendant -respondent are agreed that the terms of the document considered by themselves envisage an out and out sale. But Sri Chanderki, the learned advocate for appellants, contends that the surrounding circumstances have to be taken into consideration. If so done, the intention of the parties to treat the transaction not as an out and out sale as alleged by the defendant -respondent but as a 'Viswas Bai' will be manifest. He contends that oral evidence is admissible to prove the conduct of the parties which,when taken into consideration, supports the plaintiffs case. On the other hand, it is urged by Sri Jagirdar, the learned advocate for respondent, that section 92 of the Evidence Act excludes the consideration of oral agreement or statement which would vary the terms of a written contract. According to him, the contract between the parties is reduced into writing and is evidence by exhibit A-1, the sale deed, by which document, ownership and possession of the property was transferred to the defendant. It does not, therefore, lie in the mouth of the plaintiffs to contend that the evidence contradicting varying, adding to or subtracting from the terms of the contract thereby changing the very nature of the suit transaction, should be either considered or given effect to.