Karnataka High Court
Sri V R Vijaykumar S/O Revanasiddappa vs Revanasiddappa S/O Vaddarahalli ... on 6 July, 2017
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JULY 2017
BEFORE
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
R.S.A.NO.2097/2005 C/W RSA.CROB.NO.10/2006
C/W R.S.A.NO.2096/2005 C/W RSA.CROB NO.9/2006
R.S.A.NO.2097/2005
BETWEEN:
1. SRI V.R.VIJAYKUMAR
S/O REVANASIDDAPPA
AGED 46 YEARS
R/O SHAMANUR
DISTRICT DAVANGERE
2. S.R.RAJASHEKHARAPPA
S/O REVANASIDDAPPA
AGE : 40 YEARS,
R/O SHAMANUR
DISTRICT DAVANGERE ...APPELLANTS
(BY SRI REVANNA BELLARY, ADVOCATE
APPEAL AGAINST APPELLANT NO.1 ABATES V.C.O
DATED 31.05.2017)
AND :
1. REVANASIDDAPPA S/O VADDARAHALLI BASAPPA
DIED BY LEGAL REPRESENTATIVES
APPELLANT NO.1 AND 2
R47, R66(A) AND (B) ARE LEGAL HEIRS
AMENDMENT IS CARRIED OUT AS
PER ORDER DATED 06.03.2017
-2-
2. A.M.VIJAYAPPA
S/O MAHESHWARAPPA
AGE :53 YEARS,
OCC : BUSINESS
R/O BHIMASAMUDRA,
TQ. AND DIST. CHITRADURGA.
3. R.PARAMESHWARAPPA
S/O RANGAVVANAHALLI SURAPPA
AGE : 63 YEARS,
R/O DODDALAGATTA VILLAGE,
TQ. AND DIST. CHITRADURGA
4. NANJAPPA
S/O VANGATERA SIDDALINGAPPA
AGE : 64 YEARS
R/O DODDALAGATTA VILLAGE
DIST. CHITRADURGA
5. HIMANTHARAJAPPA
S/O VADDARAHALLI BASAPPA
AGE : 66 YEARS,
OCC : TEACHER
R/O SHAMANUR
TQ. AND DIST. DAVANGERE
6. SHIVARUDRAPPA
S/O VADDARAHALLI BASAPPA
AGE : 76 YEARS,
R/O SHAMANUR
TQ. AND DISTRICT DAVANGERE
7. G.M.SIDDARAMESHWARA
S/O G.B.MARULASIDDAPPA
D.NO.50, BAPUJI VIDHYANAGAR,
TQ. AND DIST.DAVANGERE
8. G.M.SATISH
S/O G.B.MARULASIDDAPPA
D.NO.3174, MARUTHI
-3-
10TH MAIN, MCC B BLOCK,
DAVANGERE
9. V.ANNA DORAI
S/O S.K.VENKATASWAMY
D.NO.533-4, 5TH MAIN,
P.J.EXTENSION
DAVANGERE.
10. R.SATYANARAYANA GUPTA
S/O RATNAIAH SHETTY
D.NO.2879/1, MCC B BLOCK,
"KAVERI NILAYA"
10TH DIVISION,
DAVANGERE.
11. SULTAN A. VAZID
S/O ABDUL VAZID
VIDYANAGAR
D.NO.1637/4
DAVANGERE.
12. K.SUDARSHAN
S/O R.DRISHNARAO
D.NO.215, 3RD FLOOR,
3RD BLOCK, 6TH MAIN,
2ND E CROSS,
BASAVESHWARANAGAR,
BANGALORE
13. H.R.SUDARSHAN
S/O H.P.RUPLANAGARA REDDY
LECTURER,
U.B.D.T.ENGINEERING COLLEGE
ELECTION DIVISION,
DIST. DAVANGERE
14. K.S.VEERABHADRAPPA
S/O K.GURUBASAPPA
D.NO.253, JAGADEESH NILAYA
-4-
DODDAPET, GOPANAHALLI
DIST. CHITRADURGA
AT PRESENT OFFICER OF C.G.B
HIREGOMMBANUR
15. B.M.JAYADEVAPPA
S/O LATE MALLAPPA
D.NO.3738/11
VADIRAJ NILAYA
SWAMY VIVEKANANDA EXTENSION
DAVANGERE
16. A.M.MALLINATH
@ A.M.GONGADHARAIAH
ALAGILAVADA VILLAGE
HARAPANAHALLI TALUK,
DIST. DAVANGERE
17. P.SIDDESHWARA GOWDA
@ P.BASAVANNE GOWDA,
PUNABAGATTA VILLAGE
HARAPANAHALLI TALUK
DIST. DAVANGERE
18. O.D.BASAVARJAPPA
OBEHANALLI
ANAGODU HOBLI
TQ. AND DIST.DAVANGERE
19. SHIVALINGAPPA
D.NO.1176:40
5TH CROSS,
SIDDAVEERAPPA LAYOUT
DAVANGERE
20. SADASHIV
S/O CHANNAPPA DODDAMATTIHALLI
@S.C.DODDAMATTIHALLI
D.NO.2352, VIDYANAGAR
LIG, 2ND CROSS
DAVANGERE
-5-
21. K.NETHRA
C/O K.KENCHAPPA
D.NO.685, 3RD CROSS
ANJANEYA LAYOUT
DAVANGERE
22. G.M.TIPPANNA
S/O MARUDAPPA
TYAVANGI VILLAGE
CHANNAGIRI TALUK
DIST. DAVANGERE
23. D.K.NAGARAJAPPA
S/O KALLAPPA
LIG. 2ND CROSS
VIDYANAGAR
D.NO.2352
DAVANGERE
24. D.K.NAGARAJAPPA
S/O KALLAPPA
D.NO.2352,
LIG, 2ND CROSS
VIDYANAGAR
DAVANGERE
25. G.M.TIPPANNA
W/O MARUDAPPA
TYAVANAGI VILLAGE
DHANNAGIRI TALUK
DAVANGERE
26. S.M.ROOPADEVI
W/O S.M.NAGARAJ
D.NO.2049/2
"VEERABHADRESWARA"
2ND CROSS, 2ND MAIN
MCC B BLOCK
DAVANGERE
-6-
27. K.S.HARISH
W/O M.SIDDARAMAPPA
D.NO.2123
SWAMY VIVEKANANDA LAYOUT
DAVANGERE
28. SADASHIV
S/O CHANNAPPA DODDAMATTIHALLI
@ S.C.DODDAMATTIHALLI
D.NO.2352, LIG, 2ND CROSS
BAPUJI VIDHYANAGAR
DAVANGERE
29. MOMMINA MARUTHIRAMA
@ MOMMINA RAJENDRA
BOGIREDDY
VENKATESHWARA RAO
& BOGIREDDY KOTRAIAH
D.NO.558/3, K.B.EXTENSION
KTJ COMPOUND
DAVANGERE
30. G.S.MANJULA
W/O RUDRESH
D.NO.2462
"TRINETHRA"
RAILWAY CONTRACTOR
LAKSHMIPUR LAYOUT
ARASIKERE
31. S.RANI
W/O S.SHRINATH
D.NO.618/5,
"MATHRUKRUPA"
5TH CROSS, K.B.EXTENSION
DAVANGERE
32. MADHUMATI
W/O K.KOTRAPPA
-7-
MCC B BLOCK (EXTENDED)
SIDDAVEERAPPA LAYOUT
NEAR PISALI TOTA (FARM)
D.NO.1781/14
DAVANGERE
33. B.NIRMALA
W/O B.SURESH
D.NO.4042
MCC B BLOCK
SIDDAVEERAPPA LAYOUT
DAVANGERE
34. E.S.PRAKASH
S/O E.SHARANAPPA
MCC A BLOCK
CHURCH ROAD
D.NO.2518
DAVANGERE
35. N.MANJUNATHA
@ MAHANTHAPPA
D.NO.1789,
NEAR PISALE TOTA
DAVANGERE
36. K.KAVITA GANJI
W/O MAHESH GANJI
D.NO.2011, 20TH CROSS
2ND FLOOR, J.P.NAGAR
BANGALORE
37. K.KOTRAPPA
S/O D.KOTRABASAPPA
D.NO.1784/14
MCC B. BLOCK
SIDDAVEERAPPA LAYOUT
DAVANGERE
38. M.N.PRABHUSHANKAR
-8-
S/O M.NAGANNA
D.NO.3235, MCC B BLOCK,
10TH DIVISION
DAVANGERE
39. SHARADAMMA
W/O G.NAGEBDRAPPA
D.NO.1700/8, 9TH CROSS
SIDDAVEERAPPA LAYOUT
DAVANGERE
40. A.B.RAMAPPA
@A.B.HALAPPA
D.NO.585, RANGANATH NILAYA
ANJANEYA LAYOUT
DAVANGERE
41. SHANTHAKUMARI B. NAGENDRAPPA
D.NO.1700-8
SIDDAVEERAPPA LAYOUT
DAVANGERE
42. K.V.NAGARAJAPPA
S/O K.VEERANNA
BENAKANAHALLI POST,
TQ. HONNALI
43. K.B.GAYATRIDEVI
D/O VIJAYKUMAR
3RD CROSS
SIDDAVEERAPPA LAYOUT
DAVANGERE
44. A.P.CHANNAKESHAVANTAPPA
D.NO.1709/4
BANKERS COLONY
SIDDAVEERAPPA LAYOUT
DAVANGERE
45. V.HIMANTHARAJAPPA
-9-
S/O VADDARAHALLI BASAPPA
R/O SHAMANUR
TQ. DAVANGERE
46. V.H.MAHENDRAPPA
S/O HIMANTHARAJAPPA
AGE : 40 YEARS,
R/O SHAMANUR
DAVANGERE
47. V.R.SHAMBHULINGAPPA
S/O REVANASIDDAPPA
AGED ABOUT 42 YEARS,
OCC : I.M.V.INSPECTOR
BIJAPUR
48. M.SHEKHARAIAH
S/O M.UJJAYYA
D.NO.1245:11
VIDHYANAGAR, 10TH MAIN
TARALABALU LAYOUT
DAVANGERE
49. G.R.ISHWARAPPA
S/O G.RUDRAPPA
HIREMALALI
HILALKERE
TQ. DAVANGERE
50. P.CHANDRASHEKHARGOUDA
ASSISTANT DIRECTOR
HORTICULTURE
ZILLA PANCHAYATH
YALABURGA
KOPPALA TALUK
PERMANENT ADDRESS;
VIDYANAGAR POLICE STATION ROAD
VINAYAK LAYOUT
DAVANGERE - 5.
- 10 -
51. M.E.MADHUKUMAR
S/O ISHWARAPPA
AGE : 36 YEARS,
D.NO.2036/54,
10TH CROSS, TARALUBALU LAYOUT
DAVANGERE
52. S.RAMESH
S/O S.SHANKARAPPA
POST : BASAVAPATTANA
CHANNAGIRI TALUK
53. SMT.CHANDRAMMA
W/O LATE K.UMAPATI
AGE : 46 YEARS,
OCC : HOUSEHOLD WORK
54. VISHWA
S/O LATE K.UMAPATI
AGE : 25 YEARS,
55. SHASHI
S/O LATE K.UMAPATI
AGE : 22 YEARS,
56. KUMARI DEEPA
D/O LATE K.UMAPATI
AGE : 23 YEARS,
R53 TO R56 ARE RESIDING AT
D.NO.131/3
8TH CROSS, 1ST MAIN
VINOBANAGAR
DAVANGERE - 6
57. SMT.PRATIBHA
W/O V.H.MAHENDRAPPA
SHAMANUR
DAVANGERE
- 11 -
58. SMT.PARWATAMMA
W/O V.HIMANTARAJAPPA
SIDDAVEERAPPA LAYOUT
DAVANGERE -4
59. SMT.V.H.LALITA
W/O E.G.NAGENDRAPPA
D.NO.1932/318
ANJENEYA LAYOUT
DAVANGERE - 4
60. V.H.NITYANAND
S/O V.HIMANTHAPPA
AGE : MAJOR
SIDDAVEERAPPA LAYOUT
D.NO.2478, BASAVA SADAN
OPP: HEMAVATHI HOSPITAL
DAVANGERE TALUK
61. SMT.ANITHA
W/O V.H.NITYANAND
AGE : MAJOR
SIDDAVEERAPPA LAYOUT
D.NO.2478
BASAVA SADAN
OPP: HEMAVATHI HOSPITAL
DAVANGERE TALUK
62. KIRAN
MINOR REPRESENTED BY
V.HIMANTHARAJAPPA
R/O SIDAVEERAPPA LAYOUT
DAVANGERE
63 RAJASHREE
MINOR REPRESENTED BY HER
GRAND FATHER
SRI V.HIMANTHARAJAPPA
S/O BASAPPA
- 12 -
R/O SIDDAVEERAPPA LAYOUT
DAVANGERE - 4
64. POOJA
MINOR REPRESENTED BY HER GRAND FATHER
BY V.HIMANTARAJAPPA
S/O BASAPPA
R/O SIDDAVEERAPPA LAYOUT
DAVANGERE - 4
65. SMT.SULOCHANA
W/O GURUPADAPPA
S/O V.HIMANTARAJAPPA
2ND CROSS, TARALABALU LAYOUT
HADADI ROAD
DAVANGERE - 5
66. V.R.SHIVANANDAPPA
S/O REVANASIDDAPPA
AGE : 43 YEARS
CANTEEN SUPERVISOR
R/O SHAMANUR
DISTRICT DAVANGERE
DEAD BY LEGAL REPRESENTATIVES.
66(A) SMT.S.MANAGLAGOWRI
W/O LATE V.R.SHIVANANDAPPA
AGED ABOUT 54 YEARS,
R/O D.NO.534,
NEAR ANJANEAYA TEMPLE
ANJANEYA LAYOUT,
DAVANGERE-577 004
66(B) KUMARI SHOBA SHAMANUR
D/O LATE V.R.SHIVANANDAPPA
AGED ABOUT 29 YEARS,
R/O D.NO.534,
NEAR ANJANEAYA TEMPLE
ANJANEYA LAYOUT
- 13 -
DAVANGERE-577 004. ...RESPONDENTS
(APPELLANT NO.1 AND 2, R47, R66(A) AND (B) ARE
TREATED AS LEGAL REPRESENTATIVES OF DECEASED R1
R2 TO R4 ARE SERVED AND UNREPRESENTED
SRI B.M.SIDDAPPA, ADVOCATE FOR C/R5, R60, R45, R46
SRI K.RAGHAVENDRA RAO, ADVOCATE FOR R7, R8, R10,
R13, R15, R18, R21, R23, R26, R29, R30, R32, R33, R37, R44
SRI MAHESH R. UPPIN, ADVOCATE FOR R34
SRI CHANDRASHEKAR C. CHANASPUR, ADVOCATE FOR R38
R11, R16, R17, R42, R47, R52 AND R54 ARE SERVED AND
UNREPRESENTED)
RSA NO.2097/2005 IS FILED UNDER SECTION 100 OF
CPC AGAINST THE JUDGEMENT AND DECREE DATED
06.08.2005 PASSED IN R.A.NO.200/2004 ON THE FILE OF
THE ADDITIONAL SESSIONS JUDGE, FTC-I, DAVANAGERE,
DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 08.11.2000 PASSED IN
O.S.NO.86/2000 ON THE FILE OF THE PRL. CIVIL JUDGE
(JR.DN), DAVANAGERE.
RSA.CROB.NO.10/2006
BETWEEN:
1. HIMANTHARAJAPPA
S/O VADDARAHALLI BASAPPA
AGED ABOUT 66 YEARS,
OCCUPATION : RETIRED TEACHER
2. V.H.MAHENDRAPPA.
S/O HIMANTHARAJAPPA
AGED ABOUT 40 YEARS,
CROSS APPELLANTS 1 AND 2 ARE
RESIDENTS OF SHAMANUR VILLAGE
DAVANGERE TALUK AND DISTRICT - 577 002
3. V.H.NITHYANANDA
- 14 -
S/O HIMANTHARAJAPPA
AGED ABOUT 35 YEARS,
RESIDING AT
DOOR NO.2478, SIDDAVEERAPPA LAYOUT
BASAVA SADANA
OPPOSITE HEMAVATHI HOSPITAL
DAVANGERE - 577 002. ...CROSS OBJECTORS
(BY SRI B.M.SIDDAPPA, ADVOCATE)
AND :
1. V.R.VIJAYA KUMAR
S/O REVANASIDDAPPA
AGED ABOUT 46 YEARS,
2. S.R.RAJASHEKARAPPA
S/O REVANASIDDAPPA
AGED ABOUT 40 YEARS,
BOTH ARE RESIDENTS OF
SHAMANUR VILLAGE
DAVANGERE TALUK AND
DISTRICT - 577 002. ...RESPONDENTS
(BY SRI REVANNA BELLARY, ADVOCATE)
RSA.CROB NO.10/2006 IS FILED UNDER ORDER 41
RULE 22 OF CPC AGAINST THE JUDGMENT AND DECREE
DATED 06.08.2005 PASSED ON POINT NO.1, 2 AND 3 IN
R.A.NO.200/2004 ON THE FILE OF THE ADDITIONAL
SESSIONS JUDGE, FTC-1, DAVANAGERE, AFFIRMATIVELY
ANSWERING POINT NO.1, 2 AND 3 AND DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 08.11.2000 PASSED IN O.S.NO.86/2000 ON THE FILE
OF THE PRL. CIVIL JUDGE(JR.DN), DAVANGERE.
- 15 -
R.S.A.NO.2096/2005
BETWEEN:
SRI V.R.SHAMBHULINGAPPA
S/O REVANASIDDAPPA
AGED 42 YEARS,
OCC. I.M.V INSPECTOR
BIJAPUR. ...APPELLANT
(BY SRI REVANNA BELLARY, ADVOCATE)
AND :
1. V.R.SHIVANANDAPPA
S/O REVANASIDDAPPA
AGE 43 YEARS,
CANTEEN SUPERVISOR
R/O SHAMANUR
DIST. DAVANGERE
DEAD BY LEGAL REPRESENTATIVES
1(a) SMT.S.MANAGLAGOWRI
W/O LATE V.R.SHIVANANDAPPA
AGED ABOUT 54 YEARS,
R/O D.NO.534, NEAR ANJANEAYA TEMPLE,
ANJANEYA LAYOUT,
DAVANGERE - 577 004
1(b) KUMARI SHOBA SHAMANUR
D/O LATE V.R.SHIVANANDAPPA
AGED ABOUT 29 YEARS,
R/O D.NO.534, NEAR ANJANEAYA TEMPLE
ANJANEYA LAYOUT,
DAVANGERE - 577 004
2. V.R.VIJAY KUMAR
S/O REVANASIDDAPPA
AGE : 46 YEARS,
- 16 -
R/O SHAMANUR
DIST. DAVANGERE
3. REVANASIDDAPPA
S/O VADDARAHALLI BASAPPA
DEAD BY LEGAL REPRESENTATIVES
R1(a) AND (b) LEGAL REPRESENTATIVES
OF SHIVANANDAPPA,
R2 VIJAY KUMAR
R49 RAJASHEKHARAPPA ARE THE
LEGAL REPRESENTATIVES OF R3
AMENDED VIDE ORDER
DATED 06.03.2017
4. A.M.VIJAYAPPA
S/O MAHESHWARAPPA
AGE :53 YEARS,
OCC : BUSINESS
R/O BHIMASAMUDRA
TQ. AND DIST. CHITRADURGA
5. R.PARAMESHWARAPPA
S/O RANGAVVANAHALLI SURAPPA
AGE :63 YEARS,
R/O DODDALAGATTA VILLAGE
TQ. AND DIST. CHITRADURGA
6. NANJAPPA
S/O VANGATERA SIDDALINGAPPA
AGE : 64 YEARS,
R/O DODDALAGATTA VILLAGE
DIST. DAVANGERE
7. HIMANTHARAJAPPA
S/O VADDARAHALLI BASAPPA
AGE : 66 YEARS,
OCC: TEACHER
R/O SHAMANUR
DIST. DAVANGERE
- 17 -
8. SHIVARUDRAPPA
S/O VADDARAHALLI BASAPPA
AGE : 76 YEARS,
R/O SHAMANUR
DISTRICT DAVANGERE
9. G.M.SIDDARAMESHWARA
S/O G.B.MARULASIDDAPPA
D.NO.50, BAPUJI VIDHYANAGAR,
TQ. AND DIST.DAVANGERE
10. G.M.SATISH
S/O G.B.MARULASIDDAPPA
D.NO.3174, MARUTHI
10TH MAIN, MCC B BLOCK,
DAVANGERE
11. V.ANNA DORAI
S/O S.K.VENKATASWAMY
D.NO.533-4, 5TH MAIN,
P.J.EXTENSION
R/O SHAMANUR
DAVANGERE.
12. R.SATYANARAYANA GUPTA
S/O RATNAIAH SHETTY
D.NO.2879/1, MCC B BLOCK,
"KAVERI NILAYA"
10TH DIVISION,
DAVANGERE.
13. SULTAN A. VAZID
S/O ABDUL VAZID
VIDYANAGAR
D.NO.1637/4
DAVANGERE.
14. K.SUDARSHAN
S/O R.DRISHNARAO
D.NO.215, 3RD FLOOR,
- 18 -
3RD BLOCK, 6TH MAIN,
2ND E CROSS,
BASAVESHWARANAGAR,
BANGALORE
15. H.R.SUDARSHAN
S/O H.P.RUPLANAGARA REDDY
LECTURER,
U.B.D.T.ENGINEERING COLLEGE
ELECTION DIVISION,
DIST. DAVANGERE
16. K.S.VEERABHADRAPPA
S/O K.GURUBASAPPA
D.NO.253, JAGADEESH NILAYA
DODDAPET, GOPANAHALLI
DIST. CHITRADURGA
AT PRESENT OFFICER OF C.G.B
HIREGOMMBANUR
17. B.M.JAYADEVAPPA
S/O LATE MALLAPPA
D.NO.3738/11
VADIRAJ NILAYA
SWAMY VIVEKANANDA EXTENSION
DAVANGERE
18. A.M.MALLINATH
@ A.M.GANGADHARAIAH
ALAGILAVADA VILLAGE
HARAPANAHALLI TALUK,
DIST. DAVANGERE
19. P.SIDDESHWARA GOWDA
@ P.BASAVANNE GOWDA
PUNABAGATTA VILLAGE
HARAPANAHALLI TALUK
DIST. DAVANGERE
20. O.D.BASAVARJAPPA
- 19 -
OBEHANALLI
ANAGODU HOBLI
TQ. AND DIST. DAVANGERE
21. SHIVALINGAPPA
D.NO.1176:40
5TH CROSS
SIDDAVEERAPPA LAYOUT
DAVANGERE.
22. SADASHIV
S/O CHANNAPPA DODDAMATTIHALLI
@S.C.DODDAMATTIHALLI
D.NO.2352, VIDYANAGAR
LIG, 2ND CROSS
DAVANGERE
23. K.NETHRA
C/O K.KENCHAPPA
D.NO.685, 3RD CROSS
ANJANEYA LAYOUT
DAVANGERE
24. G.M.TIPPANNA
S/O MARUDAPPA
TYAVANGI VILLAGE
CHANNAGIRI TALUK
DIST. DAVANGERE
25. D.K.NAGARAJAPPA
S/O KALLAPPA
LIG. 2ND CROSS
VIDYANAGAR
D.NO.2352
DAVANGERE
26. D.K.NAGARAJAPPA
S/O KALLAPPA
D.NO.2352,
LIG, 2ND CROSS
- 20 -
VIDYANAGAR
DAVANGERE
27. G.M.TIPPANNA
S/O MARUDAPPA
TYAVANAGI VILLAGE
CHANNAGIRI TALUK
DAVANGERE
28. S.M.ROOPADEVI
W/O S.M.NAGARAJ
D.NO.2049/2
"VEERABHADRESWARA"
2ND CROSS, 2ND MAIN
MCC B BLOCK
DAVANGERE
29. K.S.HARISH
W/O M.SIDDARAMAPPA
D.NO.2123
SWAMY VIVEKANANDA LAYOUT
DAVANGERE
30. SADASHIV
S/O CHANNAPPA DODDAMATTIHALLI
@ S.C.DODDAMATTIHALLI
D.NO.2352, LIG, 2ND CROSS
BAPUJI VIDHYANAGAR
DAVANGERE
31. MOMMINA MARUTHIRAMA
@ MOMMINA RAJENDRA
BOGIREDDY KOTRAIAH
K.B.EXTENSION
KTJ COMPOUND
DAVANGERE
32. G.S.MANJULA
W/O RUDRESH
D.NO.2462
- 21 -
"TRINETHRA"
RAILWAY CONTRACTOR
LAKSHMIPUR LAYOUT
ARASIKERE
33. S.RANI
W/O S.SHRINATH
D.NO.618/5,
"MATHRUKRUPA"
5TH CROSS, K.B.EXTENSION
DAVANGERE
34. MADHUMATI
W/O K.KOTRAPPA
MCC B BLOCK (EXTENDED)
SIDDAVEERAPPA LAYOUT
NEAR PISALI TOTA (FARM)
D.NO.1781/14
DAVANGERE
35. B.NIRMALA
W/O B.SURESH
D.NO.4042
MCC B BLOCK
SIDDAVEERAPPA LAYOUT
DAVANGERE
36. E.S.PRAKASH
S/O E.SHARANAPPA
MCC A BLOCK
CHURCH ROAD
D.NO.2518
DAVANGERE
37. N.MANJUNATHA
@ MAHANTHAPPA
D.NO.1789,
NEAR PISALE TOTA
DAVANGERE
- 22 -
38. K.KAVITA GANJI
W/O MAHESH GANJI
D.NO.2011, 20TH CROSS
2ND FLOOR, J.P.NAGAR
BANGALORE
39. K.KOTRAPPA
S/O D.KOTRABASAPPA
D.NO.1784/14
MCC B. BLOCK
SIDDAVEERAPPA LAYOUT
DAVANGERE
40. M.N.PRABHUSHANKAR
S/O M.NAGANNA
D.NO.3235, MCC B BLOCK,
10TH DIVISION
DAVANGERE
41. SHARADAMMA
W/O G.NAGEBDRAPPA
D.NO.1700/8, 9TH CROSS
SIDDAVEERAPPA LAYOUT
DAVANGERE
42. A.B.RAMAPPA
@A.B.HALAPPA
D.NO.585, RANGANATH NILAYA
ANJANEYA LAYOUT
DAVANGERE
43. SHANTHAKUMARI B. NAGENDRAPPA
D.NO.1700-8
SIDDAVEERAPPA LAYOUT
DAVANGERE
44. K.V.NAGARAJAPPA
S/O K.VEERANNA
BENAKANAHALLI POST,
TQ. HONNALI
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45. K.B.GAYATRIDEVI
D/O VIJAYKUMAR
3RD CROSS
SIDDAVEERAPPA LAYOUT
DAVANGERE
46. A.P.CHANNAKESHAVANTAPPA
D.NO.1709/4
BANKERS COLONY
SIDDAVEERAPPA LAYOUT
DAVANGERE
47. V.HIMANTHARAJAPPA
S/O VADDARAHALLI BASAPPA
R/O SHAMANUR
TQ. DAVANGERE
48. V.H.MAHENDRAPPA
S/O HIMANTHARAJAPPA
AGE : 40 YEARS,
R/O SHAMANUR
DAVANGERE
49. S.R.RAJASHEKHARAPPA
S/O REVANASIDDAPPA
AGED ABOUT 40 YEARS,
R/O SHAMANUR
DAVANGERE
50. M.SHEKHARAIAH
S/O M.UJJAYYA
D.NO.1245:11
VIDHYANAGAR, 10TH MAIN
TARALABALU LAYOUT
DAVANGERE
51. G.R.ISHWARAPPA
S/O G.RUDRAPPA
HIREMALALI
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HILALKERE
TQ. DAVANGERE
52. P.CHANDRASHEKHARGOUDA
ASSISTANT DIRECTOR
HORTICULTURE
ZILLA PANCHAYATH
YALABURGA
KOPPALA TALUK
53. M.E.MADHUKUMAR
S/O ISHWARAPPA
AGE : 36 YEARS,
D.NO.2036/54,
10TH CROSS, TARALUBALU LAYOUT
DAVANGERE
54. V.H.MAHENDRA
S/O HIMANTHARAJAPPA
AGE : 45 YEARS,
R/O SHAMANUR VILLAGE
TQ. DAVANGERE
55. C.H.NITYANAND
W/O HIMANTHARAJAPPA
AGE : 41 YEARS,
AGRICULTURIST
R/O SHAMANUR VILLAGE
TQ. DAVANGERE
56. S.RAMESH
S/O S.SHANKARAPPA
POST : BASAVAPATTANA
CHANNAGIRI TALUK
57. SMT.CHANDRAMMA
W/O LATE K.UMAPATI
AGE : 46 YEARS,
OCC : HOUSEHOLD WORK
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58. VISHWA
S/O LATE K.UMAPATI
AGE : 25 YEARS,
59. SHASHI
S/O LATE K.UMAPATI
AGE : 22 YEARS,
60. KUMARI DEEPA
D/O LATE K.UMAPATI
AGE : 23 YEARS,
R57 TO R60 ARE RESIDING AT
D.NO.131/3
8TH CROSS, 1ST MAIN
VINOBANAGAR
DAVANGERE - 6
61. SMT.PRATIBHA
W/O V.H.MAHENDRAPPA
SHAMANUR
DAVANGERE
62. SMT.PARWATAMMA
W/O V.HIMANTARAJAPPA
SIDDAVEERAPPA LAYOUT
DAVANGERE - 4
63. SMT.V.H.LALITA
W/O E.G.NAGENDRAPPA
D.NO.1932/318
ANJENEYA LAYOUT
DAVANGERE - 4
64. KIRAN MINOR
REPRESENTED BY V.HIMANTHARAJAPPA
R/O SIDAVEERAPPA LAYOUT
DAVANGERE
65. SMT.SULOCHANA
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W/O GURUPADAPPA
S/O V.HIMANATARAJAPPA
2ND CROSS,
TARLABALU LAYOUT
HADADI ROAD
DAVANGERE - 5. ...RESPONDENTS
(BY SRI S.V.PRAKASH, ADVOCATE FOR R1(a) & (b)
SRI B.M.SIDDAPPA, ADVOCATE FOR R7, C/R55, R62, R64 & R65,
SRI A.HANUMANTHAPPA, ADVOCATE FOR R19
VIDE ORDER DATED 29.08.2007 NOTICE TO R1 TO R3, R8,
R9, R11, R14, R16, R17, R21 TO R23, R30, R31, R37, R38,
R41, R43, R45 TO R49, R51, R53, R54, R57, R61 TO R63 IS
DISPENSED WITH
R4 TO R6, R10, R12, R13, R15, R18, R20, R24 TO R29, R32
TO R36, R39, R40, R42, R44, R50, R52, R56, R58 TO R60 ARE
SERVED AND UNREPRESENTED
R3 DIED SOLE APPELLANT, R1(a) and (b) R2 & R49 ARE
LEGAL REPRESENTATIVES OF DECEASED R3
R2 APPEAL ABATED VIDE COURT ORDER 31.05.17)
RSA NO.2096/2005 IS FILED UNDER SECTION 100 OF
CPC AGAINST THE JUDGEMENT AND DECREE DATED
06.08.2005 PASSED IN R.A.NO.198/2004 ON THE FILE OF
THE ADDITIONAL SESSIONS JUDGE, FTC-I, DAVANAGERE,
DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 08.11.2000 PASSED IN
O.S.NO.86/2000 ON THE FILE OF THE PRL. CIVIL JUDGE
(JR.DN), DAVANAGERE.
RSA.CROB NO.9/2006
BETWEEN:
1. HIMANTHARAJAPPA
S/O VADDARAHALLI BASAPPA
AGED ABOUT 66 YEARS,
OCCUPATION : RETIRED TEACHER
2. V.H.MAHENDRAPPA.
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S/O HIMANTHARAJAPPA
AGED ABOUT 40 YEARS,
CROSS APPELLANTS 1 AND 2 ARE
RESIDENTS OF SHAMANUR VILLAGE
DAVANGERE TALUK AND DISTRICT - 577 001
3. V.H.NITHYANANDA
S/O HIMANTHARAJAPPA
AGED ABOUT 35 YEARS,
RESIDING AT
DOOR NO.2478, SIDDAVEERAPPA LAYOUT
BASAVA SADANA
OPPOSITE HEMAVATHI HOSPITAL
DAVANGERE - 577 001. ...CROSS OBJECTORS
(BY SRI B.M.SIDDAPPA, ADVOCATE)
AND :
V.R.SHAMBULINGAPPA
S/O REVANASIDDAPPA
AGED ABOUT 42 YEARS,
OCC : IMV INSPECTOR
BIJAPUR - 577 145 ...RESPONDENT
(BY SRI REVANNA BELLARY, ADVOCATE)
RSA.CROB NO.9/2006 IS FILED UNDER ORDER 41
RULE 22 OF CPC AGAINST THE JUDGMENT AND DECREE
DATED 06.08.2005 PASSED ON POINT NO.1, 2 AND 3 IN
R.A.NO.198/2004 ON THE FILE OF THE ADDITIONAL
SESSIONS JUDGE, FTC-1, DAVANAGERE, AFFIRMATIVELY
ANSWERING POINT NO.1, 2 AND 3 AND DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 08.11.2000 PASSED IN O.S.NO.86/2000 ON THE FILE
OF THE PRL. CIVIL JUDGE(JR.DN), DAVANGERE.
THESE RSAs AND CROBs ARE COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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JUDGMENT
The plaintiffs in O.S.86/2000 on the file of Principal Civil Judge (Jr.Dn), Davanagere, have come up in these two appeals impugning the finding of lower appellate court in dismissing their suit for partition under Article 109 of the Limitation Act. RSA.No.2097/2005 is by plaintiff Nos.2 and 4 and RSA.No.2096/2005 is by plaintiff No.3.
Defendant Nos.5 and 46 in OS.No.86/2000 and another son of defendant No.5 (respondent Nos.47, 48 and 55 in RA.198/2004 and respondent Nos.45, 46 and 57 in RA.200/2004) have come up in cross objections impugning the finding of lower appellate court in answering point Nos.1 to 3 in affirmative, which were with reference to the relief sought for by the plaintiffs for the relief of partition and separate possession of suit schedule properties.
2. Brief facts leading to the second appeals and cross objections are as under:
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Plaintiffs 1 to 4 are the sons of 1st defendant - Revanasiddappa. Admittedly, Revanasiddappa was the member of joint family of his father Vaderahalli Basappa. The said Vaderahalli Basappa had in all 5 sons, namely Mahadevappa, Shivarudrappa, Revanasiddappa - 1st defendant, Himantharajappa
- 5th defendant and Chandrasekarappa. The joint family of Vaderahalli Basappa had several movable and immovable properties, which were the subject matter of registered partition dated 11.10.1960. In the said partition, several properties were allotted to the share of 1st defendant - Revanasiddappa, which is taken by him, the said partition and allotment of share to him in the joint family properties is not in dispute. Thereafter, in the year 1968 under two registered sale deeds the 1st defendant had sold the properties that were allotted in his favour under partition dated 11.10.1960 in favour of defendant Nos.2, 3 and 4. Subsequently, the suit schedule properties covered under two registered sale deeds vide Ex.P44 dated 19.6.1968 and Ex.P43 dated 17.10.1968 were further sold by the purchasers under said agreements in
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favour of others, in which one of the properties is said to be sold to 5th defendant Himantharajappa, who is the younger brother of 1st defendant and also to another person by name Shivarudrappa, who is 6th defendant and also elder brother of 1st defendant - Revanasiddappa.
3. When matter stood thus, on 23.4.1983 the suit in OS.86/2000 was filed for the relief of partition with reference to suit 'A' and 'B' schedule properties. Admittedly, suit 'A' schedule consists of 3 items of agricultural lands and suit 'B' schedule consists of a residential house. According to plaintiffs, these are the four properties, which had fallen to the share of their father in the registered partition dated 11.10.1960. Though in the plaint it is stated that 1st defendant had sold the suit 'A' schedule item Nos.1 and 3 and as well as suit 'B' schedule to 2nd defendant
- A.M.Vijayappa on 19.6.1968, no prayer is sought either against the said sale deed or its binding nature on the plaintiffs. Similarly, with reference to suit 'A' schedule, item No.2 also, which is sold
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in favour of defendant Nos.3 and 4 under Ex.P43, dated 17.10.1968, there is no prayer. The prayer sought in the suit is as if all the properties are still available in the joint family and they are seeking partition of said properties even though the sale deeds at Exs.P43 and P44 are referred to in the plaint and there is no prayer with reference to said sale deeds. Defendant Nos.5 and 6 are made as parties to this proceedings, for the reason that they had purchased some of the properties and sold some in favour of 2nd defendant - A.M.Vijayappa subsequently. However, there is no prayer against any of these defendants though there is reference to sale transactions in their favour. The prayer sought is only for partition of suit schedule properties against 1st defendant. In fact, the prayer sought in the suit itself is a defective one.
4. In the said proceedings, on service of summons, as expected, 1st defendant conveniently stayed away from the court. It is only defendant Nos.5 and 6, who have purchased some of the
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suit schedule properties from 1st defendant have filed the written statement and contested the suit.
5. It is seen, based on the pleadings, the court below proceeded to frame 4 issues for consideration, they are; regarding the plaintiffs entitlement for partition and separate possession of 4/5th share in suit 'A' and 'B' schedule properties; with reference to the allegation made in paragraphs 4 and 5 of the plaint about their father leading immoral life and for his immoral vices he had sold the suit schedule properties and whether enquiry is required to be held under Order XX Rule 12 of CPC to determine mesne profits, which was sought. These three issues were framed on the basis of the pleadings of plaintiffs. The fourth issue was against defendant Nos.5 and 6, who were contesting defendants calling upon them to establish whether 5th defendant is in actual possession of suit 'A' schedule properties and also whether he would be substantiating his defence in paragraph 5 of the written statement.
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6. After framing of issues, the parties led in evidence. Wherein in support of the case of plaintiffs, 3rd plaintiff adduced evidence as PW.1 and also examined one Mahadevappa as PW.2 who is the elder brother of defendant Nos.1 and 5. In all they produced and marked 55 documents as Exs.P1 to P55. On behalf of defendants, 5th defendant adduced evidence as DW.1 and he produced and marked 11 documents as Exs.D1 to D11. Thereafter, on appreciation of the pleadings, oral and documentary evidence on record, the court below proceeded to answer issue Nos.1 to 3 in the negative and 4th point in favour of defendants and consequently, dismissed the suit of plaintiffs.
7. The records would indicate that in between a settlement was arrived at between the plaintiffs, except plaintiff No.3 and defendants agreeing for some out of court settlement. Based on which a compromise decree was drawn, which was the subject matter of appeal in RA.4/1998 on the file of Civil Judge (Sr.Dn), Davanagere, wherein the decree was set aside. Against said
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judgment and decree, an appeal in RSA.621/1998 was filed before this Court, where a joint memo was filed by the parties and on the basis of said joint memo, the matter was remanded back to trial court for fresh consideration.
8. In this background, the original suit was heard and disposed off on merits by judgment and decree dated 8.11.2000. As against said judgment of court below two appeals came to be filed; one in RA.198/2004 by 3rd plaintiff and another by plaintiff Nos.1, 2 and 4 in RA.200/2004. In said appeals on the file of Fast Track Court, Davanagere, the lower appellate court framed the following points for consideration;
1) Whether the plaintiffs in the court below would demonstrate that plaintiffs and first defendant in the court below were members of undivided family and plaintiffs had 4/5th in the suit schedule properties?
2) Whether the suit schedule properties were sold by first defendant for his immoral purposes?
3) Whether respondent No.7 in RA.198/2004 and 46th respondent in RA.200/2004 have violated the interim order of this Court?
One more point that was framed was,
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Whether the suit is within the period of limitation as required under Article 109 of the Limitation Act?
9. The records would indicate that though the fourth point is framed, the same is not found in the list of questions. However, after point Nos.1, 2 and 3, the point which was framed to consider about what order the parties were entitled to, is numbered as point No.5, thereby indicating that the 4th point for consideration was framed and there is a typographical error in same not being included in the points for consideration in the judgment. However, the same is discussed at length in the judgment of lower appellate court by providing a finding thereon.
10. The judgment of lower appellate court would indicate that the three points which were framed for consideration regarding the plaintiffs right of having 4/5th share in suit schedule properties along with 1st defendant; regarding the properties being sold for immoral purposes and with reference to allegation of violation of interim order passed in the court below with reference to alienation of suit schedule properties are answered in the
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affirmative. However, when it comes to 4th point, whether the suit is filed within the period of limitation as contemplated under Article 109 of the Limitation Act, the same is answered in the affirmative against the appellants/plaintiffs in the court below and consequently, the appeals filed by the plaintiffs came to be dismissed.
11. The appellants in the lower appellate court, plaintiffs in the court below being aggrieved by the finding on point No.4, have come up in these two appeals, whereas, defendant Nos.5, 46 and another son of defendant No.5, have come up in two cross objections against the finding on issue Nos.1 to 3 rendered by the lower appellate court.
12. When these two appeals came up for admission, they were admitted to consider the following substantial question of law:
Whether the courts below were justified in dismissing the suit holding that the claim of the plaintiffs is barred by statute and hit by Article 109 of the Limitation Act?.
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13. Heard the learned counsel for the parties in both the appeals as well as cross objections. It is necessary to place on record that defendant Nos.5 and 46 and another son of 5th defendant are the only defendants who are contesting this proceedings. The other defendants have not pursued the litigation, inasmuch as major portion of the property having been acquired by defendant No.5 - Himanthrajappa from defendant Nos.2, 3 and 4, is pursuing this litigation to protect his interest.
14. On going through the pleadings, oral and documentary evidence available on record with reference to finding of trial court on issues 1 to 5 as well as that of lower appellate court on point Nos.1 to 4, the fact that the joint family status between Vaderahalli Basappa and his 5 sons, namely Mahadevappa, Shivarudrappa, Revanasiddappa, Hemanthappa and Chandrashekarappa is not in dispute. It is also not in dispute that in the said family there was partition as on 11.10.1960, which is duly registered. Hence, with the said partition the joint family
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status is severed between the children of Vaderahalli Basappa. In the partition the suit schedule properties were allotted to the share of 1st defendant for the benefit of himself and his children as he was the Kartha of his branch, which included himself and his children.
15. The records would indicate that 1st defendant besides being an agriculturist was also doing business as per the recitals in Exs.P43 and P44, whereunder he had sold item Nos.1 to 3 of suit 'A' schedule and 'B' schedule properties in favour of defendants 2, 3 and 4 in the court below under two registered sale deeds dated 19.6.1968 and 17.10.1968 and delivered possession of said properties also in favour of the purchasers under said sale deeds. The sale having completed in the year 1968, is not subjected to any challenge at any point of time. However, 15 years thereafter the suit for partition is filed by the 4 sons of Revanasiddappa - 1st defendant in the court below as if item Nos.1 to 3 of suit 'A'
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schedule and 'B' schedule properties are still with his father - 1st defendant and they are available for partition.
16. In support of the relief sought in the original suit, the plaint averments are to the effect that 1st defendant - Revanasiddappa, who is the father of plaintiffs was leading an immoral life and was addicted to vices as could be seen in paragraphs 3 and 4 of the plaint and for said vices, they have alleged that their father sold all the properties referred to in item Nos.1 to 3 of suit 'A' schedule and 'B' schedule properties in favour of defendant Nos.2, 3 and 4. In the very same paragaraphs, the plaintiffs would also state that subsequently there were certain transactions, which had taken place in defendant Nos.5 and 6 purchasing some of the suit schedule properties from defendant Nos.2, 3 and 4. However, in the entire plaint there is no reference to any prayer being made to hold that the sale deeds at Exs.P43 and P44 would not bind the plaintiffs since they are executed for immoral need of 1st defendant. The plaintiffs would proceed with
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the suit under the premise as if suit schedule properties are still available with his father - 1st defendant, if partition is effected, they would be getting their share from out of the suit schedule properties and they would be taking possession of said properties directly from 1st defendant without there being any prayer against the other defendants with reference to sale deed executed in their favour.
17. In the original suit, the court below after recording evidence has answered all the issues which were framed based on the pleadings in plaint, in the negative and by answering the issue which was framed based on the defence raised by defendants in the affirmative, dismissed the suit holding that the plaintiffs have failed to establish the accusations and allegations of immoral activities of their father and also the suit schedule properties being sold for the vices of his father. It is also seen that in the judgment of court below there is a finding to the effect that the entire suit is collusive in nature. The justification for said finding is, the 1st
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defendant as could be seen from the cause title to suit is resident of Davanagere and while showing the place of his residence, his business address is shown to camouflage his residence along with the plaintiffs. However, at the time of evidence it has come in the evidence of PW.1 that 1st defendant is residing with them, which would clearly indicate the collusiveness between the parties, namely plaintiffs 1 to 4 and 1st defendant in filing the suit, as observed by the court below in paragraph 28 of its judgment, which appears to be just and proper. Therefore, in this background this Court find that there is total justification in dismissal of the suit of plaintiffs in denying any relief sought for by them i.e, either to hold that they have a share or to allot any share to them in the suit schedule properties, which were not available to them.
18. The plaintiffs having failed to secure the relief as sought in the suit, filed two separate appeals i.e., plaintiffs 1, 2 and 4 filing appeal in RA.200/2004 and 3rd plaintiff filing appeal in
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RA.198/2004 on the file of FTC, Davanagere, wherein the lower appellate court clubbed both the appeals together and by framing separate points for consideration in each of the appeals proceeded to dispose off the same with certain findings on points for considerations, which is contrary to the finding given by the court below so far as it pertains to joint family status and right of the plaintiffs to seek partition in suit schedule properties. However, the appeals are dismissed only on the legal question viz., whether the suit was maintainable under Article 109 of the Limitation Act? The said finding is under challenge by defendant Nos.5 and 46 and another son of defendant No.5 by filing cross objections in these two appeals filed by the plaintiffs challenging dismissal of their appeals in RA.Nos.198 and 200 of 2004. Hence, in addition to the substantial question of law which was framed while admitting the appeals one more substantial question of law is required to be framed to answer the grounds urged in cross objection Nos.9 and 10 of 2006. Accordingly, the following
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substantial question of law arises for consideration in view of the grounds urged in cross objections;
Whether the divergent finding rendered by the lower appellate court on point Nos.1 to 3 is just and proper?
19. After hearing the learned counsel for both parties and on going through the pleadings, oral and documentary evidence available on record, this Court would answer the first substantial question of law, which was framed with reference to suit being hit by Article 109 of Limitation Act in the affirmative, thereby affirming the judgment rendered by the lower appellate court in dismissing the suit of plaintiffs and answering second substantial question of law which is with reference to divergent finding rendered by the lower appellate in the negative against the appellants and in favour of cross objectors for the following reasons:
20. Admittedly, partition in the family of Vaderahalli Basappa has taken place initially in the year 1968. The records would disclose that 1st defendant who is father of plaintiffs 1 to 4
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was not only an agriculturist but also a businessman carrying out business in printing in Davanagere Town. As could be seen from the plaint, the said business address is shown as the address of 1st defendant in the original suit. It is seen that in the partition that had taken place vide Ex.P42 the properties that were allotted to the share of 1st defendant are item Nos.1 to 3 of suit 'A' schedule, which are agricultural lands and a residential house, which is suit 'B' schedule property. The recitals in sale deeds which are executed by 1st defendant in favour of defendant Nos.2, 3 and 4 would clearly indicate that he has suffered loss in business and he was in the midst of difficulties and therefore, being left with no other source to get away from the difficulties, suit schedule properties being the only properties that were available with him, he had sold the same to clear the loans incurred by him for running the business.
21. Admittedly, 1st defendant is Kartha of his branch consisting of himself and his 4 sons, namely plaintiffs 1 to 4 living
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together. In fact, there is no evidence to demonstrate that there was any kind of differences between them from the date of original partition in 1960 till date of filing of the suit. There is also nothing on record to demonstrate that there were incidents earlier, where there was commotion between the members of the family with regard to the wayward life of 1st defendant which had affected the family of plaintiffs 1 to 4 and 1st defendant. However, all this was i.e., immoral life of 1st defendant and his wayward life etc., are all have come up for the first time when the suit was filed in the year 1983 where partition is sought as if suit schedule properties are still available for partition. The said prayer is made in the teeth of pleading that 1st defendant has sold all the properties in favour of defendants 2, 3 and 4 in the year 1968 and subsequently, in the year 1980 some of the properties are purchased by defendants 5 and 6. It is seen, inspite of aforesaid pleadings, there is no prayer either seeking declaration that the said sale deeds are not binding on the plaintiffs nor that the said sale deeds are without valid consideration.
- 46 -
22. Therefore, in the absence of registered sale deeds not being set aside, how the plaintiffs can seek share in the suit schedule properties, which were already sold in favour of third parties 15 years prior to the filing of the suit, is not properly explained by the plaintiffs. Therefore, the court below has rightly dismissed the suit of the plaintiffs. However, the lower appellate court while considering the same has committed a serious error in believing as if said properties are available for partition as on the date of filing of suit and as such, plaintiffs have 4/5th share along with 1st defendant, who has 1/5th share in suit schedule properties and hence, they are entitled to partition. However, when it comes to filing of the suit within the period of limitation is concerned, it is answered against the plaintiffs, who are appellants in the court below, thereby dismissed the suit. Therefore, this Court would find that the finding given by the lower appellate court on point Nos.1 to 3, is erroneous. Therefore, the same is required to be set aside while answering the substantial question of law framed now
- 47 -
based on the grounds urged in cross objection Nos.9 and 10 of 2006 filed in the two second appeals.
23. Now coming to the question of law regarding maintainability of the suit from the point of limitation, what is required to be seen is Article 109 of the Limitation Act, 1963, which reads as under:
"109. By a Hindu governed Twelve years When the alienee by Mitakshara law to set takes possession of aside his father's alienation the property"
of ancestral property A reading of aforesaid Article would clearly shows that the period of limitation is 12 years from the date the purchaser takes possession of the property sold in his favour.
24. In the instant litigation, Exs.P43 and P44 are the two sale deeds under which 1st defendant sold suit 'A' and 'B' schedule properties in favour of defendant Nos.2, 3 and 4, where he has clearly stated the reason for sale and as well as the delivery of possession of properties to the purchasers in furtherance to the sale deeds executed in their favour. The fact that the purchasers
- 48 -
under Exs.P43 and P44 have taken possession of the properties in the year 1968 is further confirmed in said defendant Nos.2, 3 and 4 conveying very same properties in favour of defendant Nos.5 and 6 under registered sale deeds which are also on record at Exs.P46 and P47. The said factual position is accepted by the plaintiffs in their pleadings. When once they have accepted said aspect, there is clear admission that possession has passed on from 1st defendant to the name of purchasers under Exs.P43 and P44, which had taken place in the year 1968. If that is accepted, the law of limitation is very clear that within 12 years i.e., on or before 1980 the suit in OS.59/1983 should have been filed for setting aside the said sale transactions.
25. In the instant case, even though the suit is filed belatedly, there is no prayer either for declaration that said sale deeds are not binding on the plaintiffs or to set aside the same which has already taken place . Therefore, there is clear violation of Article 109 of the Limitation Act by the plaintiffs while filing
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the suit in OS.No.59/1983. Therefore, the 1st substantial question of law is answered in the affirmative holding that the lower appellate court has rightly rejected the appeal relying upon Article 109 of the Limitation Act in holding that the suit of the plaintiffs itself is barred by law of limitation as on the date when it was filed. In that view of the matter, this Court find that the appeals filed by the plaintiffs in the original suit are required to be dismissed and the cross objections filed by 5th defendant and his two sons in original suit are required to be allowed.
26. While doing so, in the present set of facts this Court is required to impose heavy cost on the plaintiffs for abusing the process of law in trying to deny the legitimate right of purchasers, who have purchased the suit schedule properties for valuable consideration, which is fought on collusive basis between the plaintiffs 1 to 4 and 1st defendant as rightly observed by the trial court in its judgment at paragraph 28. Therefore, if such kind of greedy act goes unpunished, it will strengthen the hands of others
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to initiate such unrighteous litigations to deprive the legitimate right of purchasers of properties for valuable consideration. Therefore, cost of Rs.50,000/- is imposed for wasting the time of trial court, lower appellate court and this Court, which amount the plaintiffs shall deposit in this court within four weeks from this day. Out of that Rs.30,000/- to be released to contesting respondents, who are cross objectors in this proceedings and Rs.20,000/- to be appropriated to the registry.
27. Accordingly, the appeals in RSA.Nos.2096/2005 and 2097/2005 filed by plaintiffs are dismissed and the Cross Objection Nos.9/2006 and 10/2006 are allowed.
In view of the disposal of appeals and cross objections, all the other applications which are pending do not survive for consideration and hence, they are disposed off.
Sd/-
JUDGE nd/-