AHMED SAB vs MOHAMMED ALI
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 4 DAY OF NOVEMBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
REGULAR SECOND APPEAL NO. 1787 OF 2017 (INJ)
BETWEEN:
AHMED SAB
S/O. KAREEN SAB,
SINCE DEAD BY LRS,
RASOOL SAB
S/O. LATE. AHMED SAB,
AGED ABOUT 58 YEARS
R/AT NEECHE MOHALLA
DONABAGHATA VILLAGE
BHADRAVATHI TALUK
SHIVAMOGGA DISTRICT – 577 301.
…APPELLANTS
(BY SRI. NISAR SAB, ADVOCATE)
AND:
1. MOHAMMED ALI
S/O. KARIM SAB,
AGED ABOUT 77 YEARS.
2. MOHAMMED SAB
S/O KALANDAR SAB
SINCE DEAD REP BY HIS LRS.
2(A) ZIAULLA
S/O LATE MOHAMMED SAB
AGED AOBUT 43 YEARS.
2(B) KALEEN
S/O LATE MOHAMMED SAB
AGED ABOUT 40 YEARS.
2(C) MUHEEF
S/O LATE MOHAMMED SAB
AGED ABOUT 37 YEARS.
Digitally
signed by
VANDANA S
Location:
High Court
of
Karnataka
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ALL ARE RESIDING AT
NEECHE MOHALLA
BONABAGHATA VILLAGE
BHADRAVATHI TALUK
SHIVAMOGGA DISTRICT – 577 301.
3. AYUB SAB
S/O LATE AHMED SAB
AGED ABOUT 50 YEARS
4. JABBAR SAB
S/O LATE AHMED SAB
AGED ABOUT 45 YEARS.
5. AZGAR SAB
S/O LATE AHMED SAB
AGED ABOUT 43 YEARS.
6. ZAHEER SAB
S/O LATE AHMED SAB
AGED ABOUT 38 YEARS.
R-2 TO R-6 ARE
R/AT NEECHE MOHALLA
DONABAGHATTA VILLAGE
BHDRAVATHI TALUK
SHIMOGGA DISTRICT – 577 301.
…RESPONDENTS
(BY SRI. S V PRAKASH, ADVOCATE FOR R-1
SRI. GANESHA.R, ADVOCATE FOR R-2(A TO C)
R-3 TO R-5 SERVED
VIDE ORDER DATED: 13.10.2022 NOTICE TO R-6 IS D/W)
THIS RSA IS FILED UNDER SEC.100 OF CPC., 1908, AGAINST THE
JUDGMENT AND DECREE DATED 01.04.2017 PASSED IN RA NO.39/2013
ON THE FILE OF THE PRL.SENIOR CIVIL JUDGE AND JMFC., AT
BHADRAVATHI ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 22.01.2013 PASSED IN OS NO.11/2006
ON THE FILE OF THE I ADDL.CIVIL JUDGE AND JMFC., AT BHADRAVATHI.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT
WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
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ORAL JUDGMENT
The appellant was the plaintiff in O.S. No. 11/2006
instituted by him against the respondents defendants for
specific performance directing the defendant no. 1 to re-
convey the suit schedule property in favour of the plaintiff
as per the undertaking or Vagdana Patra dated
29.03.1988 said to have been executed by him in favour
of the plaintiff. According to the plaintiffs, the first
defendant who is his brother and with the confidence and
st
assurance of 1 defendant, plaintiffs got executed a
nominal sale deed in respect of the suit schedule property
on 29.03.1988 purporting to sell the suit schedule
property in favour of the defendant no. 1 for a sale
consideration of Rs.30,000/-. It is also contended that the
said document was a sham and nominal document and
was never intended to be acted upon by the parties as a
result of which the first defendant executed a
contemporaneous Vagdana Patra (Re-conveyance deed)
also dated 29.03.1988 in favour of the appellant-plaintiff
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agreeing to re-convey the suit schedule property back in
favour of the appellants-plaintiffs.
2. It is further contended that the appellants-plaintiffs
have always been ready and willing to perform their part
of the contract and since the respondents-defendants did
not comply with the request and demands made by the
plaintiffs to re-convey the suit schedule property back in
favour of the plaintiffs, they issued a legal notice dated
18.07.2005 to which the respondents-defendants did not
issue any reply as a result of which the appellants-plaintiff
instituted the aforesaid suit for mandatory injunction
directing the respondents-defendants to re-convey the suit
schedule property back to the plaintiffs in terms of the
Vagdana Patra dated 29.03.1988 and for other reliefs.
3. The respondent no. 1-defendant no. 1 filed his
written statement and contested the suit inter alia
disputing and denying the various allegations and claim
made by the plaintiffs. It was contended that the sale deed
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dated 14.03.1988 executed by the plaintiffs in favour of
the defendant no. 1 was an out and out sale deed and was
neither a sham nor nominal document as contented by the
plaintiffs. Further the defendant no. 1 denied the
execution of the alleged Vagdana patra dated
29.03.1988 said to have been executed by defendant no.
1 in favour of the plaintiff. It was also contended that the
suit of the plaintiffs was barred by limitation as well as
delay and latches and also that the suit seeking mandatory
injunction was not maintainable in law or on facts and that
the same is liable to be dismissed.
4. Based on the pleadings of the parties, the trial Court
framed the following issues:
1. Whether the plaintiff proves that he is entitled for the re-
conveyance of the suit property as pleaded by him?
2. Whether the plaintiff proves that the defendants have
tried to alienate the suit property or to create mortgage over
the same?
3. What Order or Decree the parties entitled?
5. The original plaintiff examined himself as PW1 and
his legal representative Rasool Saab was examined as PW2
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and two more witnesses as PW3 and PW4 and
documentary evidence at P1 to P13 were marked while the
defendant no. 1 examined himself as DW1 but did not
produce any documentary evidence on his behalf.
6. After hearing the parties, the trial Court answered
issues 1 and 2 in favour of the appellants-plaintiffs and
consequently decreed the suit in their favour by passing
the judgment and decree dated 22.01.2013 which was
challenged by the respondent no. 1- Defendant no. 1 in
R.A. No. 39/2013 which was allowed by the first appellate
Court vide impugned judgment and decree dated
01.04.2017 by holding as hereunder:
“15. After going through the records and after hearing the
arguments, the following points arise for my consideration:
1) Whether interference of this Court is required in the judgment
and decree passed by the learned trial Judge?
2) What order?
16. My answer to the above point No.1 is in the affirmative for
the following:
R E A S O N S
17. Point No.1: - Plaintiff has instituted the suit against
defendants for mandatory injunction to direct the defendant No.1 to
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reconvey the suit schedule property to the plaintiff as per Vagdhana
Pathra and also for the relief of permanent injunction.
18. Admittedly plaintiff and defendant No.1 are brothers.
Admittedly there was execution of sale deed between plaintiff and
defendant No.1 with respect to the suit schedule property. That is
plaintiff had sold suit schedule property to defendant No.1 for a sum
of Rs.30,000/- under the said registered sale deed.
19. According to the plaintiff, he wished to purchase agricultural
land at Navile Basavapura village. As such defendant
No.1 promised plaintiff to find out a suitable land for plaintiff and in
case plaintiff did not find any suitable land, defendant No.1 would
reconvey suit property to plaintiff. In this regard a Vagdhana Pathra
was executed. But defendant No.1 denied execution of Vagdhana
Pathra and termed the said document as created and manipulated
one.
20. Plaintiff to prove due execution of Vagdhana Pathra got
examined himself as PW-1 by filing an affidavit in lieu of his
examination-in-chief. But PW-1 died during the pendency of the suit
and he could not be tendered for cross-examination. Hence evidence
of PW-1 by way of chief-examination cannot be considered.
21. After bringing legal heirs of the deceased plaintiff on record,
one of the sons of the deceased plaintiff was examined as PW-1. The
said witness filed affidavit and also produced Ex.P.1 to Ex.P.6. Ex.P.2
and EX.P.3 are certified copy of sale deed and Vagdhana Pathra
respectively. As per the evidence of PW-1 –Rasool Sab, 15 days after
the execution of sale deed defendant No.1 executed Vagdhana
Pathra. Mohammed Sab and Mehaboob Miya are witnesses to the
Vagdhana Pathra.
22. Plaintiff got examined two witnesses – PW-2 and PW-4. As per
the evidence of PW-2, he was present at the time of execution of
Vagdhana Pathra and he knows contents of the said document.
According to the PW-2, in case defendant No.1 is not happy with the
property, he shall reconvey the same to the plaintiff.
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23. According to the plaintiff, the defendant No.1 subsequently
attempted to sell the suit property to the defendant No.2. To prove
the said aspect, plaintiff got examined witness Sri K.Thimmappa as
PW-4. As per the evidence of PW-4, one Mohammed Sab has
transported sugarcane to the MPM Sugar Factory. Evidence of the
PW-4 shows that as per Ex.P.7 to EX.P.13, Mohammed Sab s/o
Mohammed Ali for the last one year (as on the date of the evidence)
was cultivating 1¼ acres in Sy.No.46/14 of Biliki village and
transported sugarcane to the MPM Sugar Factory.
24. According to the DW-1/defendant, Vagdhana Pathra dated
28.3.1988 is concocted and created document for the purpose of the
suit. But during the course of cross-examination DW-1 has admitted
the execution of the Vagdhana Pathra. DW-1 has also admitted his
signature in the Vagdhana Pathra. Admittedly defendant No.1 had
promised his brother – the plaintiff to reconvey the property to the
plaintiff in case defendant sells the said property. Though the DW-1
denied the execution of Vagdhana Pathra in written statement and in
his affidavit he has admitted the same in his cross-examination.
Therefore evidence of the DW-1 is sufficient to hold the due
execution of Vagdhana Pathra.
25. DW-1 has also deposed that he is liable for the condition
enumerated in the Vagdhana Pathra. But he has denied that he had
sold the suit property. DW-1 has also deposed that he would not sell
the suit schedule property. A perusal of the evidence of DW-1 goes to
show that he got executed the Vagdhana Pathra in favour of his elder
brother – plaintiff and he had not sold the property to anyone.
26. Plaintiff has sought for the relief of permanent injunction to
restrain defendant No.1 from selling the property to anyone. Plaintiff
has apprehended that defendant No.1 will sell the property to
defendant No.2. However DW-1 has deposed that he would not sell
the property to anyone. But plaintiff has examined PW-4 who has
produced Ex.P.7 to Ex.P.10 – agreement letter, permission letter,
surrender slip and bill which establish delivery of possession of suit
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property to defendant No.2. As such, evidence of the DW-1 that he
would not sell the property to any one cannot be believed.
27. Be that as it may, DW-1 has admitted the execution of
Vagdhana Pathra. But the question is whether the Vagdhana Pathra
can be enforced or not, because the said document is written on a
stamp paper of the value of Rs.5/-. The value of the property shown
in the said document is Rs.73,000/-. As such, the document is
insufficiently stamped and it is also an unregistered document. The
document which is insufficiently stamped cannot be considered for
any purpose. However in the case on hand, the relief is claimed on
the basis of the said Vagdhana Pathra. As aforesaid, when the
document is insufficiently stamped it cannot be considered for any
purpose.
28. Further the Vagdhana Pathra was executed on 29.6.1988. The
suit was instituted on 6.1.2006, after a lapse of nearly 18 years.
Therefore the suit is barred by limitation. Because the suit is not
instituted within the period of limitation of 3 years from the date of
the execution of the said document. Hence the conclusion arrived at
by the learned trial Judge is not just and proper. Therefore
interference of this Court is required in the judgment and decree
passed by the trial Court. Accordingly I answer point No.1 in the
affirmative.
29. Point No.2: - In view of my findings on the above points, I
proceed to pass the following:
O R D E R
Appeal filed by defendant no.1 / appellant by
challenging judgment and decree dated 22.1.2013
passed in O.S.No.11/2006 by the I Additional Civil Judge
& JMFC., Bhadravathi is allowed.
Judgment and decree passed O.S.No.11/2006 is
set aside.
Suit of the plaintiff is dismissed.
Draw Decree Accordingly.
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Office is directed to send a copy of this judgment
along with LCR to the trial court.
7. A perusal of the impugned judgment and decree
passed by the first appellate Court will indicate that the
appeal of the respondent no.1 was allowed and the suit of
the appellants-plaintiffs was dismissed by the first
appellate Court by holding as under:
I) That the suit filed on 06.01.2006 seeking
enforcement of alleged Vagadana Patra dated
29.03.1888 after a long lapse of 18 years was barred by
limitation and as such the plaintiff was not entitled to a
decree as sought for by him.
II) The suit for mandatory injunction without seeking
appropriate relief of specific performance of the alleged
Vagdana Patra was also not maintainable and the same
was barred under Section 41(h) of the Specific Relief Act
and was liable to be dismissed on this ground also.
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III) Even assuming that the suit was not barred by
limitation, the unreasonably long and inordinate delay and
latches of 18 years in instituting the suit on 06.01.2006
seeking enforcement of an alleged Vagdana Patra dated
29.03.1988 was beyond reasonable time and the delay
and latches on the part of the appellant as well as inaction
on its part in instituting the suit after a long lapse of 18
years would disentitle him from seeking the discretionary
and equitable relief of mandatory injunction as sought for
by him in the suit.
IV) That the suit seeking enforcement of Vagdana
Patra / Re-conveyance deed was also not maintainable in
view of the well settled position of law that insofar as
claim for enforcement of a re-conveyance deed was
concerned, time was always the essence of the contract
and the long lapse of 18 years would disentitle the
plaintiffs from seeking enforcement of a deed of re-
conveyance described as Vagdana Patra by the plaintiff.
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V) That the appellant-plaintiff had not placed any
material to show that he was in possession and enjoyment
of the suit schedule property. On the other hand, the
recitals in the sale deed dated 14.03.1988, revenue
records, mutation register extract, RTC extract etc. would
indicate that the plaintiff had delivered and put the
respondent no. 1 in lawful and peaceful possession and
enjoyment of the suit schedule property pursuant to the
registered sale deed dated 14.03.1988 executed by them
in favour of the defendant no. 1 and there was absolutely
no material to show, much less any recital in the re-
conveyance deed to establish that the appellants were in
possession and enjoyment of the suit schedule property.
8. The aforesaid findings of fact recorded by the first
appellate Court resulted in the first appellate Court setting
aside the judgment and decree of the trial Court and
dismissing the suit filed by the appellants plaintiffs.
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9. In view of the aforesaid facts and circumstances, I
am of the considered opinion that there does not arise any
question of law, much less substantial question of law that
arises for consideration in the present appeal which is
devoid of merit and the same is hereby dismissed at the
stage of admission itself.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
BVV
List No.: 1 Sl No.: 6