Karnataka High Court
Shri. Neelkant S/O Malleshappa ... vs Sri. Chandrashekar S/O Malleshappa ... on 7 August, 2017
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 7TH DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
R.S.A. NO.100546/2017 (DEC/INJ)
BETWEEN:
SHRI. NEELKANT
S/O MALLESHAPPA SHIRGUPPI
AGE: 44 YEARS,
OCC: ADVOCATE,
R/O: H.NO.1A/522
(OLD NO.1-A/502)
NEAR CSI CHURCH TOWNSHIP,
DANDELI.-581325
TQ:HALIYAL
DIST:UTTAR KANNADA
... APPELLANT
(BY SRI SHIVASAI M PATIL, ADVOCATE)
AND :
1. SRI. CHANDRASHEKAR
S/O MALLESHAPPA SHIRAGUPPI
AGE: 54 YEARS,
OCC: SERVICE AT HAVERI,
R/O: H.NO.1A/522
(OLD NO.1-A/502)
NEAR CSI CHURCH TOWNSHIP,
DANDELI-581325
TQ:HALIYAL
DIST:UTTAR KANNADA
2. SRI.SHIVAKUMAR
S/O MALLESHAPPA SHIRAGUPPI,
AGE: 41 YEARS,
:2:
OCC: PETTY SHOP BUSINSS,
R/O: H.NO.1A/522
(OLD NO.1-A/502)
NEAR CSI CHURCH TOWNSHIP,
DANDELI-581325
TQ:HALIYAL
DIST:UTTAR KANNADA
... RESPONDENTS
(BY SRI SACHIN S MAGADUM, ADVOCATE FOR C/R1)
THIS RSA IS FILED U/SEC.100 OF CPC, AGAINST
THE JUDGEMENT & DECREE DTD:26.04.2017 PASSED IN
R.A.NO.37/2017 ON THE FILE OF THE SENIOR CIVIL
JUDGE, HALIYAL, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED
01.07.2015, PASSED IN O.S. NO.136/2010 ON THE FILE
OF THE CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST
CLASS, HALIYAL, PARTLY DECREEING THE SUIT FILED
FOR DECLARATION, POSSESSION AND MESNE PROFIT.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THIS COURT, DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by defendant No.2 in O.S. No.136/2010 on the file of Civil Judge, Haliyal. The plaintiff instituted the suit for declaration of title in respect of the suit property and possession of 2/3rd portion occupied by the defendants.
2. The plaintiff's case is that suit property earlier belonged to Town Municipality, Dandeli. On 23.01.1974, suit property was leased by the Town Municipality to :3: Malleshappa Shiraguppi, the father of the plaintiff and the defendants for 99 years. Then on 24.07.2001 the father made a Will of his interest in the suit property in favour of the plaintiff. On the basis of this Will, the plaintiff got a sale deed executed in his favour from the City Municipality on 27.05.2003. Defendants No.1 and 2 are the brothers of the plaintiff. Since the plaintiff was working at Haveri, defendants No.1 and 2 occupied the suit property. Therefore, the plaintiff brought a suit seeking declaration of his title and possession of the portion of the house occupied by defendants No.1 and 2. The defendants in their written statement contended that the plaintiff is not the absolute owner and that they also disputed the Will executed by the father.
3. Before the trial Court, the plaintiff examined one of the attesting witnesses i.e., P.W.2 for proving the execution of the Will. He also examined P.W.3, his mother for the same purpose. The trial Court came to the conclusion that the execution of the Will was proved, and therefore, decreed the suit. This judgment of the trial Court was challenged by defendant No.2 by preferring an appeal R.A. No.37/2017 in :4: the Court of Senior Civil Judge, Haliyal. The appeal was dismissed, and hence, this second appeal.
4. The appellant's counsel argues two points, firstly that the suit was bad for non-joinder of necessary parties because other children of Malleshappa Shiraguppi are not made parties to the suit and secondly that, in the lease deed there is a clause prohibiting alienation. I find it difficult to accept these two points. Though initially the suit property was leased by the Municipality to Malleshappa Shiraguppi, subsequently, the Municipality itself executed the sale deed in favour of the plaintiff. Therefore, when the plaintiff claims that he is the absolute owner on the basis of the sale deed executed by the Municipality and that he alleges that defendants No.1 and 2 occupied a portion of his house, the other members of his family are not necessary parties.
5. With regard to the second point, it has to be stated that when the Municipality itself executed the sale deed, question of violation of a condition found in the lease deed does not arise. Probably, this non-alienation clause would have been relevant, had the lessee alienated the property to :5: a third person. This is not the case here. Therefore, substantial question of law does not arise. Appeal is dismissed.
Sd/-
JUDGE hnm