Karnataka High Court
Laxman vs Gnyanaswami And Ors on 25 September, 2024
-1-
NC: 2024:KHC-K:7331
RSA No. 200348 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR SECOND APPEAL NO.200348 OF 2024
(PAR/POS)
BETWEEN:
LAXMAN S/O YAMANAPPA HALAGALI,
AGE: 53 YEARS, OCC: MASON,
R/O ASHRAM ROAD, KALIKANAGAR,
NEAR ALLAMPRABHU SCHOOL,
VIJAYAPUR-586 101.
...APPELLANT
(BY SRI BAPUGOUDA SIDDAPPA, ADVOCATE)
AND:
1. GNYANASWAMI
S/O VEERUPAKSHAYA HIREMATH,
Digitally signed AGE: 51 YEARS, OCC: AGRICULTURE,
by RENUKA
R/O TALIKOTI CHAWL, NEAR KORI CHOWK,
Location: HIGH
COURT OF VIJAYAPURA-586 101.
KARNATAKA
2. YAMANAPPA S/O MALEPPA HALAGALI,
AGE: 74 YEARS, OCC: MASON,
R/O ASHRAM ROAD, KALIKANAGAR,
NEAR ALLAMPRABHU SCHOOL,
VIJAYPAURA-586 101.
3. MALLAPPA @ MALEPPA
S/O YAMANAPPA HALAGALI,
AGE: 49 YEARS, OCC: AUTO DRIVER,
R/O ASHRAM ROAD, KALIKANAGAR,
-2-
NC: 2024:KHC-K:7331
RSA No. 200348 of 2024
NEAR ALLAMPRABHU SCHOOL,
VIJAYAPURA-586 101.
4. SHIVASHANKAR S/O YAMANAPPA HALAGALI,
AGE: 47 YEARS, OCC: AUTO DRIVER,
R/O ASHRAM ROAD, KALIKANAGAR,
NEAR ALLAMPRABHU SCHOOL,
VIJAYAPURA-586 101.
5. SMT. DURGAWWA W/O SHINDAPPA MADAR,
AGE: 44 YEARS, OCC: HOUSE HOLD WORK,
R/O SONNA VILLAGE, TQ. BILAGI,
DIST. BAGALKOT-587 116.
6. GANAPATI S/O YAMANAPPA HALAGALI,
AGE: 42 YEARS, OCC: AUTO DRIVER,
R/O ASHRAM ROAD, KALIKANAGAR,
NEAR ALLAMPRABHU SCHOOL,
VIJAYAPURA-586 101.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
25.06.2024 PASSED IN R.A.NO.41/2021 ON THE FILE OF THE
COURT OF THE ADDITIONAL SESSIONS JUDGE, FAST TRACK
SPECIAL COURT-I, VIJAYAPURA AT VIJAYAPURA; TO CONFIRM
THE JUDGMENT AND DECREE DATED 16.02.2021 PASSED IN
O.S.NO.217/2014 ON THE FILE OF THE COURT OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND CJM, VIJAYAPURA AT
VIJAYAPRA; TO SET ASIDE THE JUDGMENT AND DECREE
PASSED BY THE LOWER APPELLATE COURT AND CONFIRMING
THE JUDGMENT AND DECREE PASSED BY THE TRIAL COURT;
ORDER FOR COSTS OF THIS APPEAL AND PASS SUCH OTHER
ORDERS DEEMS FIT IN THE CIRCUMSTANCES OF THE CASE.
-3-
NC: 2024:KHC-K:7331
RSA No. 200348 of 2024
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE) This appeal is against the divergent findings in a suit for partition and separate possession.
2. The suit is filed on 13.10.2014, claiming 1/6th share in the residential property bearing CTS No.1108/C measuring 71-35 Sq. meter in Ward No.III of Vijaypura city. The relationship between the parties is not in dispute. The 1st defendant is the father of the plaintiff and defendants No.2 to 5. Defendant No.6 is the purchaser during the pendency of the suit, who purchased the property on 14.10.2014.
3. Defendant No.1 contested the suit. The rest of the defendants namely, defendants No.2 to 5 adopted the stand taken by the 1st defendant. The 6th defendant also -4- NC: 2024:KHC-K:7331 RSA No. 200348 of 2024 contested the suit. Defendant No.1, apart from taking the contention that the property is the self-acquired property of the 1st defendant, also raised a contention that the property is sold for legal necessity.
4. The Trial Court rejected the defence relating to legal necessity. It has also rejected the defence that the property is the self-acquired property and granted a decree for partition.
5. Challenging the same, the 6th defendant, who is the purchaser filed an appeal before the First Appellate Court. The First Appellate Court has allowed the appeal and consequently dismissed the suit.
6. Aggrieved by the judgment and decree passed by the First Appellate Court, the plaintiff is before this Court in this second appeal.
7. Learned counsel appearing for the appellant/ plaintiff submits that the defendants have taken a defence of legal necessity to sell the property. Said legal necessity -5- NC: 2024:KHC-K:7331 RSA No. 200348 of 2024 is not established. Merely because there was loan in the name of the 1st defendant, it cannot be held that there was a compelling need to sell the suit property. He would further submit that the property being the joint family property, the 1st defendant could not have sold the property without the consent of the plaintiff and other brothers of the plaintiff. He would submit that the Trial Court has rightly decreed the suit for partition and the First Appellate Court, without appreciating the contentions relating to the legal necessity, has dismissed the suit by allowing the appeal.
8. This Court has considered the contentions raised at the Bar.
9. As can be noticed from the written statement, the 1st defendant has taken a stand that the property is granted to him by the Government. However, no document is produced to substantiate this contention. On account of default on the part of the 1st defendant to produce the document relating to the alleged grant, the -6- NC: 2024:KHC-K:7331 RSA No. 200348 of 2024 Trial Court has concluded that the suit property is the joint family property.
10. It is relevant to note that the property stood in the name of the 1st defendant. This fact is not in dispute. Under Hindu Law, a property standing in the name of an individual is presumed to be his self-acquired property, unless proved otherwise. Since the plaintiff is raising the contention that the suit property is the joint family property, it is for the plaintiff to establish that the property is acquired by the joint family members. It is not the case of the plaintiff that the suit property is the ancestral property.
11. On the specific question put by this Court, learned counsel appearing for the appellant/plaintiff would submit that the plaintiff was born in the year 1971 and this property is allotted to the 1st defendant by the Government in the year 1967. If the property is granted to the 1st defendant in the year 1967 by the Government, the presumption is, the property is the self-acquired property -7- NC: 2024:KHC-K:7331 RSA No. 200348 of 2024 of the grantee namely, the 1st defendant, and merely because the plaintiff is born in the family of the grantee, after the grant, it cannot be said that the plaintiff acquires right in the property by birth in the family.
12. The Trial Court has not noticed these facts and erroneously come to the conclusion that the legal necessity to sell the property is not established and because of the failure to establish the legal necessity, it has concluded that the suit property is the joint family property and erroneously decreed this suit.
13. The First Appellate Court has noticed the fact that the property is not the joint family property and this Court, on re-appreciation of the materials placed before this Court is of the view that the plaintiff has failed to establish that the property is the joint family property and no reasons are forthcoming to interfere with the judgment and decree passed by the First Appellate Court. -8-
NC: 2024:KHC-K:7331 RSA No. 200348 of 2024
14. No substantial question of law would arise for consideration in this appeal. Accordingly, the appeal is dismissed.
15. In view of dismissal of the appeal, I.A.1/2024 for stay does not survive for consideration and is accordingly dismissed.
Sd/-
(ANANT RAMANATH HEGDE) JUDGE LG List No.: 1 Sl No.: 32