Karnataka High Court
T P Kushalappa vs T P Ganapathy on 5 June, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:19501
RSA No. 2312 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR SECOND APPEAL NO. 2312 OF 2012 (DEC)
BETWEEN:
T.P. KUSHALAPPA
S/O LATE POOVAIAH,
AGED ABOUT 62 YEARS,
R/O BILIGERI VILLAGE,
HAKATHUR POST,
MADIKERI TALUK - 571 201.
...APPELLANT
(BY SRI. PRASANNA V.R., ADVOCATE)
AND:
1. T.P. GANAPATHY
SINCE DEAD BY HIS LRS
Digitally 1(A). T.G. KAVERIAMMA
signed by AGED ABOUT 73 YEARS,
MALATESH
KC W/O LATE T.P. GANAPATHY.
Location:
HIGH
COURT OF 1(B). T.G. KUMARAPPA
KARNATAKA AGED ABOUT 48 YEARS
S/O LATE T.P. GANAPATHY
BOTH ARE R/AT MUTHARMUDI VILLAGE
HAKATHUR POST,
MADIKERI-571 201.
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RSA No. 2312 of 2012
1(C). T.G. SHEELAVATHI @ SHEELA
AGED ABOUT 50 YEARS
D/O LATE T.P. GANAPATHY,
KORANGALA VILLAGE,
BHAGAMANDALA,
MADIKERI - 571 201.
2. SMT. DEVAKKI
AGED ABOUT 55 YEARS,
KATTEMADU VILLAGE,
MADIKERI TALUK - 571 201.
3. SMT. DAMAYANTHI
AGED ABOUT 37 YEARS,
KATTEMADU VILLAGE,
MADIKERI TALUK - 571 201.
4. P.A. ABBAS
SINCE DEAD BY HIS LRS
4(A). SMT. P.A. AMEENA,
AGED ABOUT 62 YEARS,
W/O LATE P.A. ABBAS.
4(B). P.A. HANEEF,
AGED ABOUT 36 YEARS,
S/O LATE P.A. ABBAS.
4(C). P.A. ABDUL SUKUR,
AGED ABOUT 34 YEARS,
S/O LATE P.A. ABBAS.
4(D). P.A. ABOOBAKAR,
AGED ABOUT 32 YEARS,
S/O LATE P.A. ABBAS.
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RSA No. 2312 of 2012
4(E). P.A. HAMSA
AGED ABOUT 30 YEARS
S/O LATE P.A. ABBAS.
4(F). P.A. BASHEER
AGED ABOUT 26 YEARS
S/O LATE P.A. ABBAS.
4(G). MISS. P.A. JAMEELA,
AGED ABOUT 28 YEARS,
D/O LATE P.A. ABBAS.
ALL ARE R/AT IKOLA VILLAGE
MADIKERI TALUK - 571 201.
4(H). SMT. FATHIMA
AGED ABOUT 31 YEARS
D/O LATE P.A. ABBAS,
W/O SULAIMAN,
R/O MAPILLETHODU, PONNAMPET,
VIRAJPET TALUK - 571 201.
4(I). SMT. NASEEMA
AGED ABOUT 29 YEARS,
D/O LATE P.A. ABBAS,
W/O ASSU,
R/O CHAMA, MATHADI VILLAGE,
VIRAJPET TALUK - 571 206.
...RESPONDENTS
(BY SRI. G. RAVISHANKAR SHASTRY, ADVOCATE FOR
R4(A - I), R1(C);
R2, R3 ARE SERVED;
V/O DATED 19.04.2017, R1(B AND C) ARE
TREATED AS LRS OF DECEASED R1(A);
V/O DATED 22.04.2019, NOTICE TO
R1(B) HELD SUFFICIENT)
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NC: 2024:KHC:19501
RSA No. 2312 of 2012
THIS RSA IS FILED U/S. 100 R/W ORDER 42 RULE 1 AND
2 OF CPC AGAINST THE JUDGMENT & DECREE DATED
30.8.2012 PASSED IN R.A.NO.3/2007 ON THE FILE OF AD-HOC
DISTRICT JUDGE AND PRESIDING OFFICER, FAST TRACK
COURT, KODAGU,MADIKERI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 7.12.2006
PASSED IN OS.NO.44/1996 ON THE FILE OF CIVIL JUDGE
(SR.DN.), MADIKERI.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the plaintiff rising following substantial questions of law to be considered in this second appeal:
"1. Whether the judgment and decrees of the courts below are required to be set aside in view of the ratio in I.L.R. 1993 KAR 2959?
2. As there was a partition earlier and the schedule property was allotted to the appellant and the appellant is not a party to the sale deed, such being the situation the sale deed executed by the 1st respondent in favour of the 4th respondent is valid in law or otherwise. Admittedly the land was cultivated with coffee, coffee registration certificate was issued in favor of the appellant, therefore the possession of the property in law is admitted authoritatively. Such being so there was no property physically for delivery of the property in favor of the 4th respondent, such being the situation whether the judgment and decree passed by the courts below is sustainable in law?"-5-
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2. Brief facts of the case which are utmost necessary for consideration of the appeal for admission are as under:
Plaintiff by name T.P.Kushalappa filed a suit in O.S.No.44/1996 with the following prayer:
a. A declaration to the effect that the Plaintiff is the rightful owner of the suit schedule property and the sale deed dated 15-9-94 registered as document No.467 of Book I, Volume 732 of 1994-95 at page 81-86, dated 16-9-94 in the Office of Sub-Registrar, Madikeri is a nullity in law and the same is not binding on the Plaintiff.
b. A direction to the effect that the plaintiff be put in possession of the suit schedule property.
c. Costs of the suit and such other relief or reliefs as this Hon'ble Court may deem fit and necessary to award in the circumstances of this case.
3. Schedule of the property reads as under as per the plaint:
"Un-pri-sagu Bane survey No.322/1 of 1-90 acres out of 5-32 acres of Coffee bounded on the East by Sy.No.324. West by Road, South by Biligeri village Boundary and North by Sy.No.322/2, situated at Biligeri village, Madikeri Taluk."-6-
NC: 2024:KHC:19501 RSA No. 2312 of 2012
4. According to the plaint averments, plaintiff is the owner of the suit properties having acquired the same by inheritance. Defendant No.1 being the senior most male member of the family of the plaintiff, soon after the death of previous Pattedar, stepped into the shoes of the Pattedar and he has parted with excess of what he was entitled to as the family property. Therefore, for the sake of Thekkada family of Mutharmudi and Biligeri villages, defendant No.1 was accepted as the Pattedar and he has been discharging the functions of the Pattedar.
5. Further, it is contended that in the year 1987 and 1998, defendant No.1 made attempts to part away with the suit property and therefore, a public notice was issued in the local daily newspaper 'Shakthi' on 24.01.1988 about the consequences that would endure by the alleged sale.
6. Despite issuing such public notice, defendant Nos.1 to 3 with a sole intention of defrauding the plaintiff, without notice to the plaintiff, sold the suit property in -7- NC: 2024:KHC:19501 RSA No. 2312 of 2012 excess of what defendant No.1 was entitled to defendant No.4 by registered sale deed dated 15.09.1994 in a sum of Rs.60,000/-. Further, the plaintiff contended that defendant No.1 had no right what so ever to alienate the suit property in favour of defendant No.4 and therefore, sought for decreeing the suit as referred to supra.
7. In pursuant of the summons issued, defendant Nos.2 to 4 entered appearance and filed a detailed written statement denying the plaint averments in toto.
8. The Trial Court raised necessary issues and trial was held.
9. In order to prove the case of the plaintiff, plaintiff got examined himself as P.W.1 and three witnesses viz., K.B.Devaiah, Padmanabhaiah and K.P.Somaiah were examined as P.W.2 to P.W.4 and relied on 34 documents which were exhibited and marked as Exs.P.1 to Ex.P.34. Among them Exs.P.1, P.3, P.4, and P.7 are the jamabandi extracts, Ex.P.2 is the copy of the -8- NC: 2024:KHC:19501 RSA No. 2312 of 2012 sale deed dated 15.09.1994, Ex.P.5 is the notice. Ex.P.6 is the paper publication. Ex.P.8 is the order of the Tahasildar dated 24.10.1996, Exs.P.9 to 27 are the assessment receipts, Ex.P.28 is the RTC extract, Ex.P.29 is the receipt, Ex.P.30 is the sketch, Ex.P.31 is the order of Deputy Commissioner, Ex.P.32 is the order of Assistant Commissioner, Ex.P.33 is the Coffee Registration Certificate, Ex.P.33(a) is the copy of Ex.P.33 and Ex.P.34 is the reply memo.
10. As against the material evidence placed on record, P.A.Abbubakar, who was one of the legal representative of deceased defendant No.4 got examined as D.W.1.
11. Learned Trial Judge after conclusion of recording of the evidence, heard the arguments and by considering the rival contentions of the parties, dismissed the suit of the plaintiff.
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12. Being aggrieved by the same, plaintiff filed an appeal before the First Appellate Court in RA No.3/2007.
13. Learned Judge in the First Appellate Court after securing the records and hearing the parties, dismissed the appeal filed by the plaintiff.
14. Being not satisfied with the finding recorded by both the Courts, plaintiff have filed the present appeal on following grounds:
The appreciation of the evidence by the Trial Court as well as the Lower Appellate Court is required to be reconsidered as the findings of the issues are not sustainable. Hence the judgment and decrees of the courts below are required to be set aside.
The ratio expounded in ILR 1993 KAR 2959 is required to be interpreted as the ratio is only applicable for jamma bane land and also all bane lands including unprivileged sagu bane land.
15. Sri.Prasanna V. R., learned counsel for the appellants reiterating the grounds urged in the appeal memorandum vehemently contended that defendant No.1 had already alienated his portion of the lands and he being
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NC: 2024:KHC:19501 RSA No. 2312 of 2012 the eldest male member, was accepted as the Pattedar of Thekkada family and was functioning pattedarship in respect of Thekkada family of Mutharmudi and Biligeri villages. Defendant No.1 misused the said Pattedarship and sold 1 acre 90 cents of the land, out of the total area of 5 acre 32 cents of unprivileged sagu bane land in Sy.No.322/1 in favour of defendant No.4 through his daughter, who acted as Power of Attorney of the Vendor. When the plaintiff came to know about the said attempts, plaintiff cautioned the general public by issuing a notification in the local newspaper and despite the same, only with an intention to defraud the plaintiff, defendant No.1 has sold in favor of defendant No.4 and thus, action was initiated which has not been properly appreciated by both the Courts and sought for allowing the appeal in respect of aforesaid substantial questions of law.
16. Per contra, Sri.G.Ravishankar Shastry, learned counsel representing legal representatives of respondent No.4 supported the impugned judgments.
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17. In the light of the arguments put forth on behalf of the parties, this Court perused the material on record, meticulously.
Reg. Substantial question of law Nos.1 and 2:
18. On such perusal of the material on record, admittedly, defendant No.1 being the eldest male member, was entitled to function as Pattedar. According to the plaintiff, even though defendant No.1 was accepted to be Pattedar of the family, there was a partition when the father of the plaintiff was alive and as such, the Pattedarship enjoyed by defendant No.1 did not grant him any right to alienate the property beyond his share and therefore, sale in favour of defendant No.4 is incorrect.
19. It is noticed that both the Courts below did bestow their attention on to the said aspect of the matter. It is also noticed by both the Courts that there is no specific averment about the said partition. As such, a categorical finding has been recorded about the absence of
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NC: 2024:KHC:19501 RSA No. 2312 of 2012 previous partition. RTC extract produced by the plaintiff also depicts that there was no separate number that has been given to the share of the parties, as per the alleged previous partition nor podi has taken place. Revenue entries were not mutated. If at all, if any previous partition has taken place as is contended by the plaintiff, parties would have approached the revenue authorities and sought for classification of the revenue entries and got mutated their names in the revenue records in respect of the shares that are allotted to them as per the previous partition.
20. Further, it is noted that land has been sold in favour of defendant No.4 even according to the plaint averments itself. It is also found from the plaint averments that the said land which has been alienated is a unprivileged sagu bane land.
21. Therefore, the substantial question of law No.1 that the judgments of the Court below is contrary to the principles of law enunciated by this Court in the case of
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NC: 2024:KHC:19501 RSA No. 2312 of 2012 Cheekere Kariyappa Poovaiah Vs. State of Karnataka reported in ILR 1993 KAR 2959 cannot be countenanced in law.
22. However, Sri.Prasanna V. R., learned counsel for the appellants strenuously contended that there is a distinction between the 'jamma bane land' and 'sagu bane land' in the said judgment. He invited the attention of this Court in regard to the discussion on point No.1 in paragraph No.7 of the said judgment where under their Lordships of the Full Bench have dealt in detail as to the meaning of jamma bane lands and while so dealing with it, their Lordships distinguished the sagu tenure vis-à-vis, the jamma bane land.
23. In the case on hand, when there is a specific mention in the plaint schedule that the land in question is a 'unprivileged sagu bane land', this Court need not have to discuss further with regard to the principles of law enunciated in the Full Bench judgment in differentiating
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NC: 2024:KHC:19501 RSA No. 2312 of 2012 the suit land whether it could be construed as jamma bane land.
24. Accordingly, substantial question of law No.1 would not arise for further consideration by admitting the appeal.
25. Insofar as second substantial question of law as referred to supra with regard to alienation is concerned, since, the specific date of partition is not mentioned and no proof is placed before the Trial Court by the plaintiff and in the absence of any pleadings with regard to the partition in the plaint, this Court is of the considered opinion that the second substantial question of law raised in the appeal would not also be available for consideration so as to admit the appeal for further consideration.
26. In view of the foregoing discussions, substantial questions of law raised in the appeal memorandum are not having any merit for further consideration.
27. Accordingly, the following:
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RSA No. 2312 of 2012
ORDER
i. Admission is declined.
ii. Regular second appeal is dismissed.
Sd/-
JUDGE KAV List No.: 2 Sl No.: 36