IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

DATED THIS THE 17TH DAY OF NOVEMBER, 2017

BEFORE

THE HON'BLE MRS. JUSTICE S.SUJATHA

REGULAR SECOND APPEAL NO.100237/2016 (INJ)

BETWEEN:

PRAKASH S/O ANANTHA RAO DESAI, AGED ABOUT 57 YEARS, OCC: AGRIL, NOW AT R/O CHANNAPANHALLI, YELBURGA TQ., KOPPAL DIST-583229.

... APPELLANT

(BY SRI S.G.KADADAKATTI AND SRI LINGESH KATTIMANI, ADVOCATES)

AND

• 1. CHAYABAI, D/O HANAMANTHA RAO DESAI, AGED ABOUT 61 YEARS, OCC: ANGANAWADI WORKER, R/O CHANNAPANHALLI, TQ: YELBURGA, DIST: KOPPAL-583229.
• 2. SMT.ROHINI, W/O UMAKANT PURANIK, AGED ABOUT 51 YEARS, OCC: HOUSEHOLD, R/O HATLGERI NAKA, OPP: CHURCH, GADAG TQ. & DIST.-583229.

... RESPONDENTS

THIS REGURAL SECOND APPEAL IS FILED UNDER SECTION 100 OF C.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 01.03.2016 PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND JMFC, YELBURGA, IN R.A.NO.31/2013 BY CONFIRMING THE JUDGMENT AND DECREE DATED 24.07.2013 PASSED BY THE LEARNED CIVIL JUDGE AND JMFC, YELBURGA, IN O.S.NO.28/2012 BY ALLOWING THIS APPEAL.

THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

This second appeal arises against the judgment and decree passed in R.A.No.31/2013 on the file of Senior Civil Judge and J.M.F.C., Yelburga (for short 'the lower appellate court'), whereby the judgment and decree passed in O.S.No.28/2012 on the file of the Civil Judge and J.M.F.C., Yelburga (for short 'the trial court') is confirmed.

2. For the sake of convenience, the parties are referred as per their status before the trial court.

3. Plaintiff instituted the suit against the defendants for the relief of permanent injunction restraining the defendants, their agents, servants and others claiming under them from interfering with his peaceful possession and enjoyment of suit schedule property. The plaint averments are that, the defendants are his uncle's daughters and they have obtained the loan from PGB Kukanoor by mortgaging the suit lands in favour of Bank and also obtained loans from private persons. In order to help the defendants, plaintiff has assured the Bank authorities and the private persons to make the payment of loan amount and he took the risk of the liabilities of the defendants. For which, the defendants voluntarily came forward and executed the relinquishment deed in his favour on 10.10.2008, relinquishing their rights in suit schedule property in the presence of witnesses and on the same day the defendants have delivered the possession of the suit property to him. On service of summons, defendants appeared through their counsel and filed written statement denying the plaint averments. It was contended by them that defendant No.1 has delivered the Tractor purchased on loan from PGB Kukanoor in good faith to the plaintiff to operate the same and to discharge the liability of the defendant No.1 to the extent of Rs.6,03,939/- to the concerned Bank, but the

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plaintiff failed to discharge the same and consequently, the Tractor was seized by the Bank authorities owing to which defendant No.1 has suffered a loss to the extent of more than Rs.10,00,000/-. On the basis of the pleadings, issued were framed. On appreciation of the evidence, the trial court dismissed the suit with costs. Being aggrieved by the same, the plaintiff preferred R.A.No.31/2013. The lower appellate court after re-appreciating the material evidence on record dismissed the appeal confirming the judgment and decree of the trial court. Being aggrieved, this second appeal is preferred by the plaintiff.

4. Learned counsel Sri Lingesh Kattimani appearing for the plaintiff/appellant submitted that the courts below failed to consider the crucial point as regards the relinquishment deed dated 10.10.2008 executed by the defendants in favour of the plaintiff relinquishing their rights in suit schedule property. This document clearly establishes that the defendants have delivered possession of the suit property in favour of the plaintiff and he is in possession and enjoyment of the same. Non-consideration of the relinquishment deed resulted in miscarriage of justice. An obligation was cast upon the courts below to mark the relevant document-relinquishment deed in order to render justice to the parties. Thus, the learned counsel seeks to set aside the judgment and decree passed by the courts below allowing the appeal.

5. I have given my anxious consideration to the arguments advanced at the hands of the learned counsel for the appellant/plaintiff and perused the material on record.

6. The entire case of the plaintiff is based on the relinquishment deed dated 10.10.2008 said to have been executed by the defendants in favour of him as a result of which he is in possession and enjoyment of the same. In order to substantiate this aspect, it was mandatory on the part of the plaintiff to produce the said document and to mark the same as an exhibit. For whatever reasons best known to the plaintiff, the same was not marked as an exhibit

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before the trial court. The lower appellate court has categorically observed that may be for the reason that the relinquishment deed was not stamped in accordance with the provisions of Karnataka Stamp Act, the plaintiff might not have marked the document apprehending the impounding of the said document by the trial court. Be that as it may be, the plaintiff in his cross-examination has admitted that he is oblivious of the fact that whether he had obtained the signatures of the defendants on the relinquishment deed or not. On appreciation of the evidence, the trial court has given a finding that the plaintiff miserably failed to prove the execution of the relinquishment deed by the defendants. On re-appreciation of the evidence, the lower appellate court confirmed the same. In the absence of the material documentary evidence placed, on which the suit claim was based, not being marked as an exhibit in the suit proceedings, no exception can be found with the judgment and decree impugned herein.

7. No substantial question of law arises for consideration. Appeal stands dismissed.

(Sd/-) JUDGE

CLK/-