A registered lease document (Moolageni) does not automatically confer title or right of possession if the claimant fails to prove the fundamental performance of the lease, such as the regular payment of rent, especially in the face of concurrent factual findings by the lower courts.

THIS REGULAR SECOND APPEAL HAVING BEEN RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, E.S. INDIRESH J., DELIVERED THE FOLLOWING:

CORAM: HON'BLE MR. JUSTICE E.S. INDIRESH

CAV JUDGMENT

1. This appeal is filed by the plaintiffs challenging the Judgment and Decree dated 13.04.2009 passed in RA.No.25/2008 on the file of the I Addl. District Judge, D.K., dismissing the appeal and confirming the Judgment and Decree dated 11.01.2008 passed in O.S.No.183/2004 on the file of the II Addl. Civil Judge (Sr.Dn.), Mangaluru, D.K., dismissing the suit of the plaintiffs.

2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the Trial Court.

3. The plaint averments are that the father of the plaintiffs - A. Shankara Prabhu had taken the suit schedule 'A' property on perpetual lease / Moolageni from its owner - Henry Everest Vincent Fernandes as per the registered Moolageni Chit dated 19.08.1968. Thereafter, father of the plaintiffs was in possession and enjoyment of the suit A schedule property. It is also stated that the said Henry Everest Vincent Fernandes was landlord of some other adjacent properties and had given to one Attur Vasudeva Prabhu - paternal uncle of the plaintiffs and father of the defendant as per registered Sale Deed dated 24.06.1969. It is further stated that, father of the plaintiffs - A. Shankar Prabhu died on 27.06.1974 leaving behind his two sons namely, A. Venkatesha Prabhu (plaintiff) and Surendra Prabhu. It is the case of the plaintiffs that the plaintiff No.1 was aged about 18 years at the time of demise of his father and as such, after the death of their father - A. Shankar Prabhu, the plaintiffs were in joint business with their paternal uncle - Attur Vasudeva Prabhu. It is further stated in the plaint that, the documents pertaining to the land properties were in the custody of Attur Vasudeva Prabhu, as he was managing the affairs of the family. It is also stated that, the uncle of the plaintiffs - Attur Vasudeva Prabhu used to take the signature of the plaintiff No.1 on various occasions in connection with the management of the land in question. It is further stated that, the uncle of the plaintiffs - Attur Vasudeva Prabhu managed to get the signature of the plaintiff No.1 and his brothers to sell the portion of the land having Moolageni holdings to third parties. It is further stated in the plaint that plaintiffs believing the version of father of defendants, have put their signatures on the documents placed by the father of the defendants without suspecting fraud being committed by the father of the defendants and therefore, the plaintiffs have preferred O.S.No.183/2004, seeking relief of declaration with consequential relief.

4. After service of summons, the defendant entered appearance and has filed written statement denying the plaint averments and contended that there was a partition on 18.07.1978 in the family of the plaintiffs and defendants and the demarcation of the property has been made in the aforementioned partition. It is further stated that, the Moolageni Deed dated 10.08.1968 and registered Sale Deed dated 24.06.1969 were made in the name of the father of the plaintiffs as Moolagenidar to avoid stamp duty and registration charges, at the time of acquiring the property in question. It is also stated that, another portion of the schedule property covered under the deed dated 19.08.1968 was purchased in the name of Radhakrishna Nayak - nephew of Shankar Prabhu and Vasudeva Prabhu and therefore, it is contended by the defendants that, the plaintiffs cannot take advantage of the