Karnataka High Court
Sri.H.N.Harisha Raj vs Sri.H.P.Narasimha Murthy on 19 September, 2022
Author: P.S.Dinesh Kumar
Bench: P.S.Dinesh Kumar
1
RFA 1576/2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF SEPTEMBER, 2022
PRESENT
THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR
AND
THE HON'BLE MR. JUSTICE UMESH M ADIGA
REGULAR FIRST APPEAL NO. 1576 OF 2022 (PAR)
BETWEEN:
1. SRI H.N.HARISHA RAJ
S/O H.P.NARASIMHA MURTHY
AGED ABOUT 25 YEARS
2. SRI H.N. ABHISHEK
S/O H.P.NARASIMHA MURTHY
AGED ABOUT 19 YEARS
BOTH ARE RESIDING AT
DOOR NO.405
EDIGARA BEEDHI
NEW MARALAVADI ROAD
HAROHALLI VILLAGE
HAROHALLI HOBLI
KANAKAPURA TALUK
RAMANAGARA DISTRICT- 571 112
...APPELLANTS
(BY SHRI G.S.ARUNA, ADVOCATE FOR
SHRI K.NATARAJ BABA, ADVOCATE)
AND:
1. SRI H.P.NARASIMHA MURTHY
S/O LATE H.J.PUTTAPPA
AGED ABOUT 59 YEARS
DOOR NO.405, EDIGARA BEEDHI
NEW MARALAVADI ROAD
2
RFA 1576/2022
HAROHALLI VILLAGE
HAROHALLI HOBLI
KANAKAPURA TALUK
RAMANAGARA DISTRICT- 571 112
2. THE MANAGER
CANARA BANK
HAROHALLI BRANCH
HAROHALLI HOBLI
KANAKAPURA TALUK
RAMANAGARA DISTRICT.
3. SRI B. NAGESH
S/O BYRAPPA
MAJOR
R/AT THAMASANDRA VILLAGE
HAROHALLI HOBLI
KANAKAPURA TALUK
RAMANAGARA DISTRICT- 571 112
...RESPONDENTS
THIS REGULAR FIRST APPEAL FILED UNDER ORDER 41
RULE 1 R/W SECTION 96 OF THE CPC, AGAINST THE
JUDGMENT AND DECREE DATED 23.03.2021 PASSED IN O.S.
NO.36/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC, KANAKAPURA, DISMISSING THE SUIT FOR
PARTITION.
THIS REGULAR FIRST APPEAL COMING ON FOR
ORDERS THIS DAY, UMESH M. ADIGA J, DELIVERED THE
FOLLOWING:
JUDGMENT
Plaintiffs in O.S.No.36/2016 on the file of Senior Civil Judge and JMFC, Kanakapura has preferred this 3 RFA 1576/2022 appeal challenging the judgment and decree dated 23.03.2021 passed in the said suit.
2. Appellants filed suit for partition claiming 1/3rd share in suit property and to declare E-auction held on 22.09.2015 by Canara Bank as not binding on them contending inter alia that the suit property was originally belonging to their grandfather Javarayappa. It was mutated in their father's name, the defendant No.1. Defendant No.1 constructed house in the suit property. He neglected and deserted plaintiffs and their mother. He obtained loan of Rs.5 Lakhs to construct the house. Plaintiff demanded for partition and they came to know that defendant No.2/Bank had sold the property in favour of Defendant No.3 through e-auction. The said sale transactions are not binding on the plaintiffs.
3. Defendant No.2/Bank contended that defendant No.1 had borrowed Rs.5 Lakhs under housing loan by mortgaging suit property. He failed to repay the loan amount. Defendant No.2 took action under the 4 RFA 1576/2022 Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, SARFAESI Act) and auctioned the suit property and sold to Defendant No.3 in e-auction. The suit was not maintainable and prayed to dismiss the same.
4. Defendant No.3 contended that he purchased the suit property from defendant No.2 through e-auction for Rs.20,03,000/- and claim of the plaintiffs is not sustainable. He is bonafide purchaser of suit property.
5. From the rival contentions of the parties, the Trial Court framed the following issues:
"1. Whether plaintiffs prove that themselves and defendant No.1 are joint family members?
2. Whether plaintiffs prove that schedule property is ancestral and joint family property of plaintiffs and defendant No.1?
3. Whether plaintiffs prove sale proceedings through defendant No.2 and purchasing schedule property by defendant No.3 in E- auction is illegal?5 RFA 1576/2022
4. Whether plaintiffs prove schedule property is available for partition?
5. Whether defendants No.2 and 3 prove that defendant No.1 raised loan for family necessity?
6. Whether plaintiffs are entitled to reliefs sought?
7. What order or decree?"
6. The plaintiffs have not let in oral or documentary evidence to prove the issues though matter was pending for about five years before Trial Court. Hence question of reconsideration of evidence do not arise, in this appeal.
7. The learned Trial Judge in para No.13 of the impugned judgment has rightly recorded a finding that a suit is barred under Section 34 of SARFAESI Act.
8. Further, it is averred in the plaint that defendant No.1 had obtained loan for construction of the house. Therefore, question of alienation of the property for any immoral purpose also does not arise. 6 RFA 1576/2022 The suit appears to be collusive suit between plaintiffs and defendant No.1 to avoid repayment of loan to the Bank.
9. In view of the above said discussion, we pass the following:
ORDER The appeal is dismissed being devoid of merits.
No costs.
Sd/-
JUDGE Sd/-
JUDGE DH