Karnataka High Court
Nadella Subbayamma And Others vs Amaregouda And Others on 27 October, 2022
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
RSA NO.1086/2006 (DEC)
Between:
1. Smt. Nadella Subbayamma
W/o Late Ramanna
Age: 75 Years, Occ: Agri
R/o Venkateshwara Camp
Within the limits of Somalapur village
Taluka: Sindhanoor
Dist. Raichur - 584 102
2. Nadella Veera Raghavulu
S/o Late Ramanna
Age: 58 Years, Occ: Agri
R/o Syndicate Camp
Jewalgera, Taluka: Sindhanoor
Dist. Raichur - 584 102
3. Nadella Sarvashwar Rao
W/o Late Ramanna
Age: 48 Years, Occ: Agri
R/o Venkateshwara Camp
Within the limits of Somalapur village
Taluka: Sindhanoor
Dist. Raichur - 584 102
4. Smt. Suguna
W/o Late Bollina Subba Rao
D/o Late Ramanna
2
Age: 40 Years, Occ: Agri
R/o Chinchari Camp
Within the limits of Uppal village
Post: Dhadesugur village
Taluka: Sindhanoor
Dist. Raichur - 584 102
5. Smt. Ananthamma
W/o Kashinath
D/o Late Ramanna
Age: 35 Years, Occ: Agri
R/o Chinchari Camp
Within the limits of Uppal village
Post: Dhadesugur village
Taluka: Sindhanoor
Dist. Raichur - 584 102
...Appellants
(By Smt. Hema L. K., Advocate)
And:
1. Amaregowda S/o Dodda Naganagouda
Died by his LRs;
1(a) Smt. Nagamma W/o Late Amaregowda
Age: 65 Years, Occ: Agri
R/o Uppal village
Taluka: Sindhanoor
Dist. Raichur - 584 102
1(b) Basavanagowda S/o Late Amaregowda
Age: 35 Years, Occ: Agri
R/o Uppal village
Taluka: Sindhanoor
Dist. Raichur - 584 102
1(c) Shivanagowda S/o Late Amaregowda
Age: 65 Years, Occ: Agri
R/o Uppal village
3
Taluka: Sindhanoor
Dist. Raichur - 584 102
1(d) Devanagowda S/o Late Amaregowda
Age: 65 Years, Occ: Agri
R/o Uppal village
Taluka: Sindhanoor
Dist. Raichur - 584 102
2. Shekhargouda
S/o Late Dodda Naganagouda
Age: 42 Years, Occ: Agri
R/o Uppal village
Taluka: Sindhanoor
Dist. Raihcur - 584 102
3. Sharana Basavaraj
S/o Late Dodda Naganagouda
Age: 36 Years, Occ: Agri
R/o Uppal village
Taluka: Sindhanoor
Dist. Raihcur - 584 102
4. Smt. Nagamma
W/o Late Dodda Naganagouda
Age: 73 Years, Occ: Agri
R/o Uppal village
Taluka: Sindhanoor
Dist. Raihcur - 584 102
5. Basanagouda
S/o Late Dodda Naganagouda
Age: 53 Years, Occ: Agri
R/o Uppal village
Taluka: Sindhanoor
Dist. Raihcur - 584 102
...Respondents
(By Sri Narendra M. Reddy, Advocate for R2 & R3;
R1(c), R4 & R5 served;
4
V/o dt.12.10.2022, service of notice to R1(a), R1(b) and
R1(d) is held sufficient)
This Regular Second Appeal is filed under Section
100 of CPC praying to allow this appeal by setting aside
the judgment and decree dated 19.11.2005 passed in RA
No.35/2005 by the learned Additional District Judge and
Presiding Officer, Fast Track Court-IV at Raichur, reversing
the judgment and decree dated 27.11.2003 passed in
O.S.No.124/1989 by the Additional Civil Judge (Jr.Dn) at
Sindhnoor and to dismiss the suit.
This Appeal is coming on for Final Hearing this day,
the Court delivered the following:
JUDGMENT
The captioned second appeal is filed by defendant No.3 purchaser feeling aggrieved by the divergent findings of the Courts below, wherein the appellate Court has allowed the appeal and suit filed by filed by the plaintiffs is decreed declaring sale deed dated 26.04.1985 executed by defendant No.1 in favour of defendant No.3 as illegal, null and void to the extent of plaintiffs' share and consequently, 5 injunction is granted in favour of plaintiffs with liberty to defendant No.3 to file a suit for general partition.
2. For the sake of convenience, the parties are referred to as per their rank before the trial Court.
3. The plaintiffs are the children of defendant No.1 Nagamma. The plaintiffs claimed that the suit land is an ancestral property and therefore, claimed that they are in joint possession and enjoyment over the suit land. The plaintiffs also contended that defendant No.2 is addicted to vices and therefore, plaintiff No.1 started managing the family affairs after the death of their father. The plaintiffs also alleged that defendant No.1's mother was under the influence of defendant No.2 and at the instance of defendant No.2, sold 1 acre 11 guntas of land in Sy.No.80 totally measuring 30 acres 38 guntas under registered sale 6 deed dated 26.04.1985. The plaintiffs claimed that defendant No.1 was not competent to alienate, as it was ancestral property. The plaintiffs also claimed that there was no family necessity, which compelled defendant No.1 to sell property. Hence, the present suit seeking declaration to declare the sale deed dated 26.04.1985 executed by defendant No.1 in favour of defendant No.3 as null and void and also for consequential relief of injunction.
4. Defendant No.1 though served with summons did not choose to contest the proceedings and was placed ex parte. Defendant No.3/purchaser contested the proceedings by filing written statement. Defendant No.3 stoutly denied the entire averments made in the plaint. Defendant No.3 claimed that defendant No.1 was an absolute owner and in possession of the suit property and she has sold 1 acre 11 guntas in Sy.No.80 for valuable sale 7 consideration. Defendant No.3 therefore claimed to be a bonafide purchaser. Defendant No.3 also claimed that he is in exclusive possession of the portion that was sold by defendant No.1.
5. The plaintiffs to substantiate their claim, let in oral and documentary evidence, while defendant No.3 to counter the clam of plaintiffs, also let in rebuttal evidence. The trial Court answered issue Nos.1 to 3 in the negative. The trial Court held that the plaintiffs have failed to prove that the suit land is joint family ancestral property and they are in joint possession. The Trial Court was also of the view that the plaintiffs have failed to prove that the alienation made by defendant No.1 is in contravention of the provisions of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act. While examining issue No.4, the trial Court held that defendant No.3 has succeeded in proving that he is 8 the bonafide purchaser. While dealing with issue No.1, the trial Court has exhaustively dealt with the material on record. While examining the admission elicited in cross examination of P.W.1 to P.W.3, the trial Court found that the family properties were divided among the sons and mother as per Ex.P.6 and mutations are also effected thereby reporting family partition to the revenue authorities. It is in this background, the trial Court was of the view that the plaintiffs and the defendants are in exclusive possession of their respective share and therefore, the trial Court was of the view that defendant No.1 had authority to alienate the property allotted to her share in a family partition. The trial Court was of the view that the evidence on record clearly indicate that the family of plaintiffs and defendants were no longer joint and therefore, the claim of the plaintiffs that they 9 constitute Hindu undivided joint family was out rightly rejected by the trial Court.
6. Feeling aggrieved by the judgment and decree of the trial Court, the plaintiffs have preferred an appeal before the lower appellate Court. The appellate Court on re-appreciation of the evidence on record has come to the conclusion that the evidence on record at the most indicates a family arrangement and not severance in the family. The appellate Court has referred to several admissions elicited in cross examination of P.W.1 which is found at paragraph Nos.23 and 26 of the judgment. Ignoring all these material, the appellate Court proceeds on an assumption that there is only family arrangement and no severance in the family further proceeds to hold that defendant No.1 is bonafide purchaser for valuable sale consideration, but however, reversed the judgment of the trial Court by holding that there is no 10 severance in the family and therefore, the plaintiffs are entitled for share and accordingly, held that defendant No.3 is at liberty to file a suit for general partition and consequently, declared sale deed dated 26.04.1985 would not bind the plaintiffs' share and same is valid only to the extent of defendant No.3's vendor's share. These divergent findings are under challenge by defendant No.3. This Court vide order dated 02.02.2007 has formulated following substantial question of law:
"Whether the Lower Appellate Court was justified in decreeing the suit of the plaintiff for declaring that the registered sale deed executed by the mother is illegal, null and void, even if it is held to be a joint family property and that there was no partition?"11
7. Heard the learned counsel appearing for the plaintiffs and the learned counsel appearing for the defendants.
8. In the light of substantial question of law framed by this Court, this Court needs to examine as to whether the material on record adduced by both the parties indicate that there is severance and complete disruption in the status as well as the properties held by the family. The cross-examination of P.W.1 would infact clinch the entire controversy between the parties. The portion of cross-examination of P.W.1 read as under:
"£ÀªÀÄä vÀAzÉAiÀĪÀgÀÄ wÃjzÀ £ÀAvÀgÀ £ÀªÀÄä Hj£À PÀÄ®PÀtð  AiÀĪÀjUÉ £ÀªÄÀ ä £ÀªÄÀ ä ºÉ¸gÀ ÀÄUÀ¼À°è d«ÄãÀz° À è §gÉAiÀĨÉÃPÀÄ CAvÀ MAzÀÄ CfðAiÀÄ£ÀÄß PÉÆnÖzɪÀÅ CAvÀ ºÉüÀĪÀzÄÀ ¸Àj EgÀÄvÀÛz.É ¸À¢æ CfðUÉ £À£Àß vÁ¬Ä ªÀÄvÀÄÛ CªÀ£À CtÚ vÀªÀÄäA¢gÀÄ ¸À» ªÀiÁrgÀÄvÁÛ£.É D CfðAiÀÄ ¥ÀPæ ÁgÀ ºÉÆ®UÀ¼° À è £ÀªÀÄä ºÉ¸g À £À ÀÄß §gÉAiÀįÁVzÉ. £ÁªÀÅ PÀÄ®PÀtÂðAiÀĪÀjUÉ ¸À°¹ è zÀ CfðAiÀÄ ¥ÀPæ ÁgÀ £ÀªÀÄä £ÀªÀÄä ºÉ¸g À ÀÄUÀ¼£ À ÀÄß ¥Àºt À ÂAiÀÄ°è §gÉ¢gÀÄvÁÛg.É 12 CzÀgAÀ vÉ ¸Àªð É £ÀA.80 gÀ°è 30 JPÀgÉ 30 UÀÄAmÉ d«ÄãÀ£ÀÄß ¥ÀæwªÁ¢ £ÀA.1 EªÀgÀ ºÉ¸g À £ À ÀÄß §gÉ¢gÀÄvÁÛg.É ¢£ÁAPÀ:6-7-1984 gÀAzÀÄ F jÃwAiÀiÁV £ÀªÀÄä £ÀªÄÀ ä ºÉ¸j À ¤AzÀ ºÉÆ®UÀ¼À ¥ÀºÀtA iÀÄ£ÀÄß §gÉAiÀįÁ¬ÄvÀÄ. ªÀUÁðªÀuÉ ªÀiÁrzÀ D d«ÄãÀU¼ À ° À è ¥ÀºÀtA iÀÄ°è CªÀgª À g À À ºÉ¸gÀ ÀÄUÀ¼À£ÀÄß vÉÆÃj¸À¯ÁVzÀÄÝ ¨ÉÃgÉAiÀĪÀgÀ ºÉ¸g À ÄÀ ¸ÉÃj¹gÀĪÀÅ¢®è. CzÀgAÀ vÉ ¥Àºt À A iÀÄ°è ¸ÁUÀª½ À CAPÀzÀ°Aè iÀÄÄ ¸ÀºÀ AiÀiÁgÀÄ AiÀiÁgÀÄ ºÉ¸j À £À ªÉÄÃ¯É ºÉÆ® DVgÀÄvÀÛzAÉ iÀÄÄ CªÀgª À g À À ºÉ¸g À ÀÄUÀ¼£ À ÀÄß §gÉ¢gÀÄvÁÛg.É £ÀªÀÄä vÁ¬Ä £À£Àß gÀeÁªÀÄA¢¬ÄAzÀ ¥ÀæwªÁ¢ £ÀA.3 EªÀjUÉ d«ÄãÀ ªÀiÁgÁl ªÀiÁr gÀeÃÉ ¸ÀÖj Rjâ PÁUÀzÀ ¥ÀvÀæ ªÀiÁrPÉÆlÄÖ £ÀAvÀgÀ MAzÀÄ PÀgÁgÀÄ ¥ÀvÀæªÀ£ÄÀ ß ªÀiÁrPÉÆnÖgÀÄvÁÛgÉ CzÉ®èªÇÀ £À£U À É UÉÆvÀÄÛ EzÀÄÝ £Á£ÀÄ ¥ÀæwªÁ¢AiÀÄgÀ ªÉÄÃ¯É ¸ÀļÀÄî zÁªÉ ¸À°¹ è gÀÄvÉÃÛ £É CAvÀºÃÉ ¼ÀĪÀzÄÀ ¸Àj C®è. zÉÆqÀØ £ÁUÀ£U À ËqÀ EvÀ£À D¹ÛU¼ À £ À ÄÀ ß UÁæªÄÀ ¯ÉPÀÌ ¥Á®PÀjUÉ CfðAiÀÄ£ÀÄß PÉÆlÄÖ £ÀªÄÀ ä £ÀªÄÀ ä ºÉ¸j À ¤AzÀ ªÀiÁrPÉÆArgÀÄvÉÛÃªÉ CAvÀ ºÉüÀĪÀzÄÀ ¸Àj EzÉ; ¸À¢æ zÉÆqÀØ£U À £ À À UËqÀ D¹ÛAiÀÄ°è ¸Àªð É £ÀA.80 G¥Áà¼À UÁæªÀÄzÀ d«ÄãÀ 30 JPÀgÉ 38 UÀÄAmÉ £À£ßÀ vÁ¬Ä ¥Àwæ ªÁ¢ £ÀA.1 EªÀ¼À ¥Á°UÉ ºÉÆÃVvÀÄÛ CzÀgAÀ vÉ CªÀ¼À ºÉ¸j À ¤AzÀ ¸À¢æ d«ÄãÀ ªÀUÁðªÀuAÉ iÀiÁVvÀÄÛ CAvÀ ºÉüÀĪÀzÀÄ ¤d«gÀÄvÀÛz.É "
9. If these two portions of evidence on record are meticulously examined, then this Court is of the 13 view that the findings and conclusions arrived at by the appellate Court in holding that there is no partition in the family is perverse and palpably erroneous. P.W.1 has stated in unequivocal terms that Sy.No.80 measuring 30 acres 30 guntas was allotted to his mother, defendant No.1. In examination-in-chief P.W.1 has also admitted in unequivocal terms that in Sy.No.80, 30 acres 30 guntas was allotted to defendant No.1. In examination-in-chief, he has stated that on 06.07.1984 mutations were effected in terms of family partition and revenue records are standing independently in the name of respective family members based on partition. If these two relevant significant details are looked into, then this Court is of the view that the judgment and decree of the trial Court in holding that there is partition in the family is based on legal evidence and also categorical admissions elicited in cross-examination of P.W.1. 14 The appellate Court has virtually misread the entire evidence on record. The conclusions arrived at by the appellate Court runs contrary to the material on record and therefore, the judgment and decree of the appellate Court is not at all sustainable. The evidence on record clearly indicate that there is severance not only in status, but there is complete disruption of joint status and there is divisions in the properties by metes and bounds. The evidence on record clearly demonstrate that defendant No.1 became absolute owner of Sy.No.80.
10. The conduct of the plaintiffs is found to be grossly unfair. If really there was no partition in the family and if they are really affected by alienation made by their mother, that should constitute a best cause of action for them to seek partition. The plaintiffs do no seek relief of partition, but have conveniently questioned sale deed executed by their 15 mother in favour of defendant No.3 and relief of declaration is sought. Therefore, this Court is of the view that even otherwise, the plaintiffs could not have maintained the present suit questioning the sale deed without seeking relief of partition. Therefore, it presupposes that the plaintiffs with an ulterior motive have not only retained the property which was allotted to their share in a family partition, but the present suit is filed with an oblique motive only to harass defendant No.3, who has purchased negligible extent in Sy.No.80. Defendant No.3 has purchased hardly 1 acre 11 guntas out of totally measuring 30 acres 38 guntas. Therefore, the judgment and decree of the appellate Court is not at all sustainable and the same suffers from infirmities. Accordingly, the substantial question of law is answered in the negative and against the plaintiffs.
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11. For the foregoing reasons, I proceed to pass the following:
ORDER The Regular Second Appeal is allowed.
The judgment and decree passed the appellate Court in R.A.No.35/2005 dated 19.11.2005 reversing the judgment and decree of the trial Court in O.S.No.124/1989 dated 27.11.2003 is set aside.
Consequently, the judgment and decree of the trial Court stands restored.
Draw decree accordingly.
Sd/-
JUDGE RSP