Karnataka High Court
Shivalingappa S/O Ballappagouda @ ... vs Smt. Bayawwa W/O Bhimanagouda Madalagi on 10 September, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 10TH DAY OF SEPTEMBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
RSA.No.7122/2012
BETWEEN:
1. SHIVALINGAPPA
S/O BALLAPPAGOUDA @
BALLAPPA MADALGI
AGE: 55 YEARS
OCC: AGRICULTURE
R/O KAKHANDAKI
TQ. & DIST. BIJAPUR - 586 101
2. SMT. SHANTABAI
W/O RAMAGOND SANK
AGE: 61 YEARS, OCC: HOUSEHOLD
& AGRICULTURE, R/O DAHYAL
TQ. & DIST. BIJAPUR - 586 101
... APPELLANTS
(BY SRI ASHOK S. KINAGI, ADVOCATE)
AND:
1. SMT. BAYAWWA
W/O BHIMANAGOUDA MADALAGI
AGE: 76 YEARS, OCC: HOUSEHOLD
R/O KAKHANDAKI, NOW AT KORI CHAWL
INDI ROAD, BIJAPUR - 586 101
2. APPASAB S/O BHIMANAGOUDA MADALAGI
AGE: 51 YEARS, OCC: AGRICULTURE
R/O KAKHANDAKI VILLAGE
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TQ. & DIST. BIJAPUR - 586 101
3. SMT. BAGAWWA W/O ALLAPPA MANIKSHETTI
AGE: 47 YEARS, OCC: HOUSEHOLD
R/O NEAR D.S.P. OFFICE
GULBARGA - 585 102
4. SMT. BASAVVA W/O BABU DALAL
AGE: 46 YEARS, OCC: A.S.I.
R/O NEAR D.S.P. OFFICE
GULBARGA - 585 102
5. SMT.BANGREWWA
W/O GURAPPA JANGAMSHETTI
AGE: 43 YEARS, OCC: HOUSEHOLD
R/O NAVALAGI, TQ.JAMAKHANDI
DIST. BAGALKOT - 587 301
6. SMT. ANNAWWA
W/O AMRUTH PARAMSHETTI
AGE: 41 YEARS, OCC: HOUSEHOLD
R/O BUDANI, TQ. AKKALKOT
DIST. SOLAPUR - 413 216
7. YALLAPPA
S/O YAMANAPPA BAJENTRI
AGE: 71 YEARS, OCC: TAILOR
R/O KAKHANDAKI
TQ. & DIST. BIJAPUR - 586 101
... RESPONDENTS
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED 03.01.2012 PASSED IN R.A.No.19/2007 ON THE FILE OF
THE III ADDL. DIST. JUDGE AT BIJAPUR. WHEREIN, THE
APPEAL WAS DISMISSED AND THE JUDGMENT AND DECREE
DATED 02.02.2007 PASSED IN O.S.No.118/2000 ON THE FILE
OF THE I ADDL. CIVIL JUDGE (SR. DN.) AT BIJAPUR WAS
CONFIRMED.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
This is a plaintiffs' appeal assailing concurrent findings recorded by the Trial Court dismissing the suit for partition which came to be affirmed by the Lower Appellate Court in R.A.No.19/2007 dated 03.01.2012.
2. Heard the arguments of Sri Ashok S. Kinagi, learned counsel appearing for appellants.
3. It is the contention of learned counsel appearing for appellants that Trial Court as well as Lower Appellate Court was not justified in dismissing the suit of plaintiffs without properly appreciating the pleadings and evidence on record and the finding recorded by Trial Court that sale of suit schedule property in favour of 7th defendant was for family necessity is an erroneous finding which ought to have been held that sale is not for family necessities since burden cast on the defendants have not been -4- discharged. On these grounds, he contends that following substantial questions of law formulated in the appeal memorandum would arise for consideration:
i. Whether both the courts below were justified in law in dismissing the suit of the plaintiffs without properly appreciating the pleadings and evidence?
ii. Whether both the courts below were justified in law in not considering that the sale is not for family necessity?
4. Facts in brief leading to the filing of this appeal are as under:
One Sri Hanamanthgouda was the propositus of the family and he had a wife by name Bangarewwa who died leaving behind two daughters Smt. Siddawwa and Smt. Rukumabai and two sons Ballappagouda and Bhimanagouda. Two daughters relinquished their rights in favour of their brothers Ballappagouda and -5- Bhimanagouda. Said two brothers during their lifetime is said to have executed sale deed dated 17.09.1993 in favour of 7th defendant in respect of land bearing Sy.No.606 situated at Kakhandaki village, Bijapur Taluk for valuable consideration of `75,000/-. During their lifetime, they did not challenge the said sale deed. Undisputedly, plaintiffs represent branch of Ballappagouda and defendants represent branch of Bhimanagouda. 7th defendant is the purchaser of property bearing Sy.No.606. Suit was filed in respect of two items of the property namely Sy.No.606 measuring 29 acres and 37 guntas sold in favour of 7th defendant and Sy.No.1137/1 measuring 2 acres 1 gunta situated in the same village. Admittedly, there were two other properties also said to have been belonging to original propositus, which has been sold according to the plaintiffs for the family necessities and same was not included in the suit. It was contended by the plaintiffs that property in question i.e., item No.1 of the suit -6- scheduled property which was sold in favour of defendant No.7 by the consent of Hanamanthgouda on 17.09.1993 was not for not legal necessities muchless necessity of the family and as such they contended that said sale deed is not binding on them and contended that it is a joint family property and they have got right over the property and as such they sought for half share in these items of the suit schedule property.
On service of suit summons, defendants appeared and second defendant filed written statement, which came to be adopted by defendant Nos.1 and 3 to 5. These defendants virtually reiterated the contentions raised in the plaint and contended that said sale deed dated 17.09.1993 executed by Sriyuths Ballappagouda and Bhimanagouda is a bogus and created one and also claimed half share in the said property by raising counter claim. However, 7th defendant who is the purchaser of the property item No.1 contended that -7- plaintiffs and defendant Nos.1 to 6 were well aware of the sale deed executed by Sriyuths Ballappagouda and Bhimanagouda in the year 1993 itself and when defendant No.7 sought for mutating the revenue records in his name immediately after purchase, defendant Nos.1 to 6 objected to it which was rejected by the jurisdictional Tahasildar and ordered for entering the name of 7th defendant in respect of suit property and as such it was contended that suit is liable to be dismissed since they did not challenge the sale at that point of time. It was also contended that second plaintiff has no locus standi to file suit for partition and separate possession as her father Ballappagouda during his lifetime sold the property in favour of defendant No.7 and her marriage was performed prior to the commencement of Hindu Succession Act, 1994 (amended Act) as such second plaintiff is not entitled for any share in the suit property. It was specifically contended by 7th defendant that property was sold for -8- legal family necessity and he has purchased the same for value and his right is to be protected under the Transfer of Property Act and contends that sale deed is binding on the plaintiffs and defendant Nos.1 to 6. It was also contended that there are other properties which belonged to the family of the plaintiffs and defendants 1 to 6 situated in the same village and they have not included all the properties and as such suit is not maintainable. On these grounds, they sought for dismissal of the suit.
5. Based on the pleadings of the parties, Trial Court framed the following issues for its consideration:
ISSUES i. Whether the plaintiff proves that, the genealogy given in the plaint is true and correct?
ii. Whether the plaintiff proves that, the suit properties are ancestral properties? -9- iii. Whether the plaintiffs prove that the sale deed dated 17.09.1993 in favour of defendant No.7 is null and void and not binding on the plaintiffs, and it has been created by the defendant No.7 with a intention to gulp the property?
iv. Whether the defendant No.7 proves that the sale deed dated 17.09.1993 is legal and valid and it has been duly executed by the father of plaintiff and defendant No.1 to 6? v. Whether the plaintiffs prove that they are entitled for partition and separate possession of ½ share in the suit schedule properties?
vi. What order or decree?
ADDL. ISSUES
i. Whether the defendant No.1 to 6 proves that
the sale deed in favour of defendant No.7 is bogus and created?
ii. Whether the defendant No.1 to 6 are entitled for ½ share in the suit properties?
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6. First plaintiff got himself examined as PW1 and got marked 14 documents as Exs.P1 to P14. Defendant Nos.2 and 7 got themselves examined as DW1 and DW2 and one witness was examined on their behalf as DW3 and 7 documents were got marked as Exs.D1 to D7. On the basis of the pleadings of the parties and after scrutinizing the evidence on record both oral and documentary, Trial Court dismissed the suit of the plaintiffs. It was noticed by the Trial Court that Sriyuths Ballappagouda and Bhimanagouda were only the owners of the property whose names were jointly entered in the revenue records and as such 7th defendant was a bonafide purchaser for value. It was also noticed by the Trial Court that there are other properties of the family which were not at all included in the hotchpot, therefore suit for partial partition in respect of a alienated property is not maintainable by relying upon the judgment reported in 1998 (6) KAR. L.J. PAGE No.386, it was also held plaintiffs and
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defendant Nos.1 to 6 failed to prove that consideration received by their respective father was not utilized for family necessities and it was also held that plaintiffs and defendant Nos.1 to 6 have failed to prove that sale deed executed in favour of 7th defendant is a bogus document. Accordingly, suit in O.S.No.118/2000 came to be dismissed by judgment and decree dated 02.02.2007.
7. Being aggrieved by the said judgment and decree, plaintiffs preferred an appeal in R.A.No.19/2007 before III Additional District Judge, Bijapur. After hearing the arguments advanced by learned respective Advocates, Lower Appellate Court formulated the following points for its determination:
i. Whether the appellants/plaintiffs prove that the Negative finding recorded by the lower Court on Issue - 3 and Affirmative finding on Issue-4 are perverse, capricious and legally not sustainable?
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ii. Whether the interference of this Court is required?
iii. What order?
8. After re-appreciating the evidence and on perusal of the pleadings of the parties, Lower Appellate Court has rejected the appeal by affirming the judgement and decree passed by the Trial Court. It was specific case of the plaintiffs and defendant Nos.1 to 6 that suit schedule property was the ancestral property and there was no partition of the said properties and without there being any legal family necessity, the land bearing Sy.No.606 has been alienated by the sons of original propositus namely Sriyuths Ballappagouda and Bhimanagouda on 17.09.1993 in favour of 7th defendant and same is not binding on them and said property is to be partitioned. Defendant Nos.1 to 6 by filing written statement raised a counter claim and they were sailing with the plaintiffs. In fact they also sought for half
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share in the suit schedule property. 7th defendant filed written statement as already extracted hereinabove and denied the claim of the plaintiffs. It is undisputed fact that during the lifetime of Sriyuths Ballappagouda and Bhimanagouda sale deed came to be executed by them on 17.09.1993 which was never challenged by either of those two persons or plaintiffs and defendant Nos.1 to 6 herein. It is also not in dispute that two daughters of original propositus Smt. Siddawwa and Smt. Rukumabai had relinquished their title and interest in respect of the suit properties in favour of their brothers Sriyuths Ballappagouda and Bhimanagouda as evident from Ex.P1. There was a partition between Sriyuths Ballappagouda and Bhimanagouda with respect to other properties as evident from Ex.P2 Sri Ballappagouda expired on 31.12.1993 and Sri Bhimanagouda expired on 08.05.1994. During their lifetime they have sold the said property on 17.09.1993 in favour of 7th defendant. For a period of 7 years, plaintiffs and defendant Nos.1 to
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6 did not choose to challenge the said sale deed. In fact, DW2 has admitted signature of his father and his uncle in the sale deed executed in favour of 7th defendant. In that view of the matter, contention of plaintiffs and defendant Nos.1 to 6 that the sale deed is a crated and bogus document was not rightly accepted by the Trial Court which was affirmed by the Lower Appellate Court.
9. PW1 admits about the existence of other joint family properties other than the one involved in the present suit and also admits that they have not included those properties in the present suit for partition. In this factual background and also in the background of the plea put forward by 7th defendant that suit was not maintainable for not including all the properties belonging to the joint family, Trial Court as observed hereinabove has relied upon the decision of this Court wherein it has been held that a suit for
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partition in respect of alienated property alone is not maintainable without including other joint family properties which would subserve the adjustment of conflicting rights and liabilities of coparceners interse and equity to alienees. On the same lines, Division Bench of this Court has also held that said suit is not maintainable in the case of G.M.MAHENDRA V. G.M.MOHAN AND ANOTHER reported in 2011(4) KCCR Page No.2461. In that view of the matter, Trial Court as well as Lower Appellate Court has rightly appreciated the material evidence available on record to arrive at a conclusion that suit itself was not maintainable. Said findings cannot be found fault with and it would not give scope for formulating substantial question of law to be adjudicated. Hon'ble Apex Court has held in catena of judgments that second appeal cannot be construed liberally or generously. It has been held in CHRISTOPHER BARLA V. BASUDEV NAIK (D) BY LRs. reported in AIR 2005 SC 1020 that finding of fact
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based on evidence would not be interfered with in second appeal.
10. In that view of the matter also I do not find that there is any substantial question of law involved in this appeal for being formulated and adjudicated.
11. Hence, the following order:
ORDER Appeal is dismissed without being admitted as devoid of merits.
Sd/-
JUDGE NB*