A registered sale deed remains valid unless a concurrent claim for declaration of title is made; mere cancellation without asserting ownership is insufficient.

JUDGMENT :

Ashok S.Kinagi, J.

This Regular second appeal is filed by the appellants challenging the judgment and decree dated 15.04.2013, passed in R.A.No.8/2010 by the learned Fast Track Court, Sagar, and the judgment and decree dated 28.10.2009 passed in O.S.No.106/2000 by the learned Additional Civil Judge (Sr.Dn.) and JMFC, Sagar.

2. For convenience, parties are referred to based on their rankings before the trial Court. The appellants were the plaintiffs, and the respondents were the defendants.

3. Brief facts leading rise to the filing of this appeal are as follows:

The plaintiffs filed a suit against the defendants for a declaration, seeking to declare the registered sale deed dated 08.05.1997 as void and for a permanent injunction. It is the case of the plaintiffs that the suit schedule property is the joint family property of the plaintiffs, and they are in possession and enjoyment of it. Eshwar Shetty is the son of Honnaiah Shetty and Gulabi Shedthy, the plaintiffs are the wife, son and daughters of Eshwar Shetty and are members of the joint family. Plaintiff No.1 is the wife of Eshwar Shetty, and Plaintiff No. 2 to 7 are the children of Eshwar Shetty. Honnaiah Shetty was the manager of the joint family, and he had constructed a house in a Government land bearing Sy.No.236 at Goranahalli village. He was residing in the said house jointly with his son and his other family members. He was cultivating the land in Sy.No.231/3, measuring 3 acres and 5 guntas as tenant under one Mallappa Gowda. The said land was granted in favour of Honnaiah Shetty by the Land Tribunal; thereafter, Honnaiah Shetty and his wife Gulabi Shedthi, as well as his son Eshwara Shetty, were cultivating the suit schedule property. As Honnaiah Shetty was 80 years old, he could not manage the joint family properties. Eshwara Shetty started managing the joint family properties. It is stated that as Honnaiah Shetty turned older and older, he cultivated the habit of consuming alcohol and he used to quarrel with his son when he refused to pay money for his bad habits, he also became hostile towards his son and he used to live separately.

3.1. The husband of defendant No.1, taking advantage of the weakness of Honnaiah Shetty, and by playing a fraud, obtained a registered sale deed dated 08.05.1997. The husband of plaintiff No.1, filed a suit against his father for partition in O.S.No.56/1997, on 02.05.1997, apprehending that the strangers might knock away the family properties as his father was always under the influence of alcohol. In the said suit, the order of temporary injunction was granted against Honnaiah Shetty, restraining him from alienating the suit schedule property. During the pendency of the said suit, Honnaiah Shetty sold the suit schedule property in favour of the husband of defendant No.1. It is contended that Honnaiah Shetty died on 18.10.1997, and his wife passed away on 16.08.1998 and the husband of plaintiff No.1, i.e., Eshwar Shetty also died on 05.08.1999. Taking advantage of the death of Honnaiah Shetty, husband of defendant No.1, started to interfere with the plaintiffs’ peaceful possession and enjoyment of the suit schedule property. Thus, a cause of action arose for the plaintiffs to file a suit for declaration and permanent injunction. Accordingly, prays to decree the suit.

3.2. The defendants filed a written statement contending that Eshwar Shetty is not the son of Honnaiah Shetty and Gulabi Shedthy and he does not belong to the Nadava Banta caste by birth. He is the son of one Krishnappa of Hondala gadde and he belongs to the Madivala community and he has no relationship with Honnaiah Shetty. It is stated that the suit land was granted in favour of Honnaiah Shetty by the Land Tribunal. Duri