Karnataka High Court
Kum. Godavaribai D/O Bandeppa Ors vs Smt. Bhimabai W/O Late Bandeppa Ors on 16 July, 2012
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 16TH DAY OF JULY, 2012
BEFORE
THE HON'BLE MR.JUSTICE L. NARAYANA SWAMY
M.F.A.NO.31150/2011(CPC)
BETWEEN:
1. KUM. GODAVARIBAI D/O BANDEPPA
AGE: 22 YEARS, OCC: STUDENT
R/O KAPNOOR
TQ.& DIST. GULBARGA
2. REVANSIDDAPPA S/O BANDEPPA
AGE: 20 YEARS, OCC: STUDENT
R/O KAPNOOR
TQ & DIST. GULBARGA
3. TEJIRAYA S/O BANDEPPA
AGE: 19 YEARS, OCC: STUDENT
R/O KAPNOOR
TQ & DIST. GULBARGA
... PETITIONERS
(BY SRI. S. M. CHANDRASHEKAR, ADVOCATE)
AND
1. SMT. BHIMABAI
W/O LATE BANDEPPA
AGE: 60 YEARS, OCC: HOUSEHOLD
2
R/O KAPNOOR
TQ & DIST. GULBARGA
2. NAGARAJ S/O BANDEPPA
AGE: 32 YEARS, OCC: BUSINESS
R/O KAPNOOR
TQ & DIST. GULBARGA
3. SOMNATHREDDY
S/O NAGAREDDY CHANDRAREDDY
AGE.MAJOR
OCC: AGRICULTURE
R/O MIJ 1-48
GUIJI COLONY
GULBARGA
... RESPONDENTS
(BY SRI. MANVENDRA REDDY ADVOCATE FOR R3
RESPONDENTS NO.1 AND 2 EXPARTE)
MFA FILED U/O 43 RULE 1(r) OF CPC AGAINST THE
JUDGMENT AND AWARD DT: 14.03.2011 PASSED IN
O.S.NO.8/2011 ON THE FILE OF THE II ADDL. CIVIL JUDGE
(SR.DN) AT GULBARGA, WHEREIN I.A.NO.II FILED U/O 39 RULE
1 AND 2 OF CPC WAS REJECTED.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
The appeal is filed by the plaintiff praying to set aside the order passed by the II Addl. Civil Judge (Sr.Dn) Gulbarga in O.S.No.8/2011 dated 14.03.2011, wherein IA.II filed under Order XXXIX Rules 1 & 2 of CPC came to be dismissed. 3 Further a prayer is made for allowing IA.II and granting order of injunction.
2. The plaintiffs/appellants herein and respondent No.2 are brother and sisters. Respondent No.1 is the mother and Respondent No.3 is the purchaser of the property measuring 4 Acres, 32 guntas in Sy.No.172 situated at Kapnoor village, Gulbarga district. It is the case of the appellants that the suit schedule property is an ancestral property, in which the plaintiffs have got undivided interest and share. Despite having such right, respondents No.1 and 2, i.e. mother and brother of the plaintiffs, have sold the property in favour of the respondent No.3 on 3.8.2007. Since the plaintiffs were minors, they were not knowing about the transaction between the defendants 1 to 3 and after noticing the construction put up by the respondent No.3, suit has been filed for partition and separate possession and declaration, and IA.II has been filed under Order XXXIX Rules 1 & 2 of CPC.
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3. The grounds urged before Court, namely, fraud committed by the Respondent No.3 and further the mortgage of the property in favour of Khadi & Village Industries Development Board, has not been looked into by the court below. Hence the Court below has committed an error in not considering IA.II for grant of injunction. It is further submitted that the plaintiffs/appellants herein have got the right over the property and the transaction made by respondent No.3, is without their consent. Hence, it is submitted to allow the appeal and set aside the order of the Court below.
4. Respondents No.1 and 2 remain absent. They were also placed exparte before the Court below. The learned counsel appearing for Respondent No.3 submits that the said respondent is the bona fide purchaser and the contesting party and hence seeks to dismiss the appeal.
5. The suit land, which is measuring 1 acre 15 guntas out of total extent of 4 acres, was sold in the year 2007 and the 5 same was mortgaged with State Bank of Hyderabad at Gulbarga. The loan, to an extent of `.95,00,000/-, has been raised and construction is going on and at this point of time if an injunction is granted, it causes respondent an irreparable loss and the same will not meet the ends of justice.
6. Respondent No.2 sold the land in favour of Respondent No.3 because of the legal necessity, and the same is permissible. The grounds urged, namely, fraud etc. has not been proved. The plaintiffs cannot allege the act of fraud etc. If at all it could have been done, it should have been only by respondents No.1 and 2, but for the reason best known to them, they remained exparte. When a joint family property is sold by the major members of the family for legal necessity, it has to be presumed that property has been sold lawfully. In support of their submission the learned counsel relied upon the judgment in the case of M.HARISH V/S KUM.SINDHU & ANOTHER reported in 2011 (4) AIR Kar R 470.
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7. I have heard both sides and gone through the pleadings, more particularly, the plaint averments.
8. The nature of property is undisputed and sale transactions between the respondents No.1, 2 and 3 is also not disputed. The property in question was sold in the year 2007. Though it is not stated in the sale deed that the transaction is for the legal necessity, (the copy of the sale deed is not placed before this Court), but in the written statement at paragraph No.7 it is stated to that effect by respondent No.3.
9. It is averred by the plaintiff themselves that the deceased Bandeppa, by mortgaging the said land to Karnataka State Khadi and Village Industries Board, Gulbarga raised a loan and got constructed a Dal Industry over the same. The said deceased Bandeppa has to pay a sum of `.10,50,000/- towards the loan. Khadi Board had issued a notice on 28th January 1999 demanding the 7 repayment of said loan released in the name of deceased Bandeppa.
10. On this background the land must have been sold by the respondent Nos.1 and 2 in favour of respondent No.3. Even a specific ground of legal necessity is not taken, but based on the materials available before this Court, as well as before the Court below, an inference has to be drawn that for legal necessity the property has been sold. Now the property measuring 1 acre 15 guntas has been further mortgaged with State Bank of Hyderabad for raising loan of ` 95,00,000/-. When such a transaction having taken place and also based on the fact that deceased Bandeppa has raised loan of `.10,50,000/- and demand notice has been issued by the Khadi Board seeking repayment of the loan, it is to be understood that the defendants No.1 and 2 have sold the land in favour of respondent No.3 for legal necessity. In the judgment relied upon by the learned counsel for Respondent No.3 in the case of M.HARISH (supra), this Court has observed that clearance of debt is an obligation on part of 8 joint family and when it is incurred towards legal necessities for development of family, the same is binding in spite of non- obtaining of permission from Court.
11. In my opinion, injunction cannot be granted unless the person who approaches the Court proves his legal rights. More than that, the physical possession in respect of land in question, was lost in the year 2007. The execution of sale deed has not been disputed. The respondent No.3 proved his possession. In view of the said undisputed facts, and also following the judgment cited above, I feel that the appeal filed by the appellant has to be dismissed. Accordingly, it is dismissed and the order passed by the Trial Court is confirmed.
Sd/-
JUDGE sdu