Karnataka High Court
Javali Kalmateppa vs A. Manohar on 25 July, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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RSA No. 5654 of 2013
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 25TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
REGULAR SECOND APPEAL NO. 5654 OF 2013
BETWEEN
JAVALI KALMATEPPA
S/O MAHANTHAPPA,
AGE: 69 YEARS,
OCC: AGRICULTURE AND BUSINESS,
R/O: CHITTAVADAGI AREA,
HOSPET, TALUK: HOSPET,
DIST: BELLARY-583101.
...APPELLANT
(BY SRI. V.M.SHEELVANT, ADVOCATE)
AND
Digitally
signed by
YASHAVANT
YASHAVANT NARAYANKAR
NARAYANKAR Date:
2023.07.26
16:55:01 -
1. A. MANOHAR
0700
S/O T.M. ANGAMUTTU,
AGE: 47 YEARS,
OCC: AGRICULTURE,
R/O: AMARAVATHI AREA,
HOSPET, HOSPET TALUK,
DIST: BELLARY-583101.
2. JAVALI RUDRAPPA
S/O MAHANTHAPPA,
AGE: 60 YEARS,
OCC: AGRICULTURE,
R/O: CHITTAVADAGI AREA,
HOSPET TALUK, HOSPET,
DIST: BELLARY-583101.
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RSA No. 5654 of 2013
3. JAVALI SANJAY
S/O JAVALI RUDRAPPA,
AGE: 33 YEARS,
OCC: AGRICULTURE,
R/O: CHITTAVADAGI AREA,
HOSPET TALUK, HOSPET,
DIST: BELLARY-583101.
4. SMT. ROHINI
W/O VIRUPAXI BEMBALAGI,
AGE: 27 YEARS,
OCC: HOUSEWIFE,
R/O: CHITTAVADAGI AREA,
HOSPET TALUK, HOSPET,
DIST: BELLARY-583101.
...RESPONDENTS
(BY SRI. HANUMANTHREDDY SAHUKAR ADV. FOR R1;
R2, R3 AND R4-NOTICE SERVED)
THIS RSA IS FILED U/S.100 OF CPC, AGAINST THE
JUDGMENT AND DECREE DTD:02.04.2013 PASSED IN
R.A.NO.23/2012 ON THE FILE OF THE PRESIDING OFFICER, FAST
TRACK COURT-III AT HOSPET, DISMISSING THE APPEAL FILED
AGAINST THE JUDGMENT DTD: 17.04.2012 AND THE DECREE
PASSED IN O.S.NO.13/2010 ON THE FILE OF THE ADDL, SENIOR
CIVIL JUDGE AND JMFC., HOSPET, DISMISSING THE SUIT FILED
FOR PRE-EMPTION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
18.07.2023, COMING ON FOR PRONOUNCEMENT, THIS DAY
COURT DELIVERED THE FOLLOWING.
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RSA No. 5654 of 2013
JUDGMENT
This appeal is filed under Section 100 of the Code of Civil Procedure, 1908 by the plaintiff challenging the judgment and decree passed in O.S.No.13/2010 by the learned Additional Senior Civil Judge & J.M.F.C., Hospet, and confirmed by the learned Fast Track Court-III, Hospet, in R.A.No.23/2012.
2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the Trial Court.
3. The brief factual matrix leading to the case are that, one Mahanthappa Javali of Hospet was the propositus of the family. The plaintiff, defendant No.2, Ashok, Channabasappa and Rajashekhar are the sons and Vijayalaxmi, Akkamahadevi, Shankramma and Premaganga are the daughters of Mahantappa and Shambullingamma. That the mother died in the year 1998 leaving behind her sons and daughters as her successors. -4- RSA No. 5654 of 2013 The suit schedule properties were under the ownership of propositus Mahanthappa and he was in possession and enjoyment during his life-time and his name was mutated. After his death in 1986, the plaintiff, defendant No.2 and his other brothers as well as the daughters succeeded to the suit properties as Class-l heirs. It is alleged that defendant No.2, Ashok and Channabasappa filed a suit in O.S.No. 126/2001 in the Civil Judge's Court (Sr.Dn), Gadag for partition and separate possession of their share in the suit schedule properties and the said suit came to be dismissed and RFA No.417/2008 is pending. In spite of filing of the suit for partition, defendant no.2 made an attempt to alienate the suit properties along with defendant nos.3 and 4 and hence, plaintiff objected for the same. Defendant No.2 along with defendant No.3 and 4 have sold the suit properties in favour of defendant No.1 for a consideration of Rs.9,25,000/- under a registered sale deed dated 02.02.2010 which is illegal and invalid. The plaintiff has got preferential right to purchase these properties and hence, the suit.
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4. Defendant no.1 filed his written statement claiming that he is the bonafide purchaser for value without notice and he is in possession of the suit schedule properties and he has developed the suit schedule properties. Defendant no.2 filed his written statement admitting the relationship between the parties. He has contended that propositus Mahanthappa during his life- time effected partition in respect of agricultural lands including the suit schedule properties and contended that the present suit properties were fallen to the share of defendant No.2 and other brothers were allotted other agricultural lands as their legitimate shares. It is asserted that the respective parties were enjoying the properties fallen to their respective shares independently and they have become exclusive owners. He admitted filing of the suit in O.S.No.126/2001 and dismissal. It is asserted that plaintiff who was defendant no.1 in the said suit asserted in the suit regarding a partition in respect of agricultural lands and exclusive possession of the respective parties. Iti s asserted that partition was effected in the year 1971 -6- RSA No. 5654 of 2013 and 1974 during the lift-time of their father regarding agricultural lands and defendant No.2 borrowed the loan by mortgaging the suit schedule properties and sold suit schedule properties. It is also asserted that defendant no.2 has also sold other properties and plaintiff has not whispered anything regarding other property and hence, he disputed the claim.
5. The Trial Court on the basis of these pleadings, framed following issues:
ISSUES "1. Whether the plaintiff proves that he has got a preferential right to purchase the Suit schedule properties as pleaded in the plaint 2
2. Whether the plaintiff further proves that, the sale deed executed by defendant No.2 to 4 in favour of defendant No.1 and 2 on 2.2.2010 is invalid and not binding on the plaintiff 7
3. Whether the plaintiff is entitled to the relief as sought for?
4. What Order or Decree?"
6. The plaintiff was examined himself as P.W.1 and placed reliance on 46 documents marked at Ex.P1 to -7- RSA No. 5654 of 2013 P46 while defendant Nos.1 and 2 were examined as D.W.Nos.1 and 2 and they placed reliance on 14 documents, marked as Ex.D1 and 14.
7. Having heard the arguments and after appreciating the oral and documentary, the learned trial Court has answered issued Nos.1 to 3 in the negative and ultimately dismissed the suit.
8. Being aggrieved by this judgment and decree, the plaintiff has approached the learned District Court, Ballary and mater came to be transferred to Fast Track Court-III, Hospet, in R.A.No.23/2012. The learned District Judge after re-appreciating oral as well as documentary evidence, by order dated 02.04.2013 dismissed the appeal by confirming the judgment and decree of the Trial Court.
9. Being aggrieved by these concurrent findings, the plaintiff is before this Court. While admitting the appeal on 11.06.2020 this Court framed following substantial question of law:
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"Whether the judgment and decree of the Trial Court and Appellant Court holding that preferential rights to purchase an agricultural land was not available under Section 22 of Hindu Succession Act, can be sustained in the light of the judgment rendered by the Apex Court in the case of " Babu Ram V/s. Santokh Singh" reported in 2019 (14) SCC 162?"
10. Heard the arguments advanced by the learned counsel for the appellant and learned counsel for the respondents. Perused the records.
11. Learned counsel for the appellant would contend that the suit is for preferential right pertaining to 3 suit schedule properties which are admittedly joint family properties of plaintiff and defendant no.2. He contended that defendant no.2 along with other two brothers filed O.S.No.126/2001 which was dismissed and in the said suit injunction was obtained against plaintiff from alienating the suit schedule properties and this fact is evident form Ex.P39 and MFA filed against the said order came to be dismissed. He would also contend that the plaintiff has issued public notice under Ex.P35 and P36 and defendant no.2 inspite of knowledge sold the suit lands on -9- RSA No. 5654 of 2013 02.02.2010 to defendant no.1 which is witnessed by defendant nos.3 and 4 and transaction is hit by Section 52 of the Transfer of Property Act. He would contend that both the Courts below have rejected the claim only on the ground that the suit schedule property are agricultural lands and Section 22 of Hindu Succession Act do not apply to the agricultural lands. He would contend that the present suit properties were part of earlier suit and in view of the decision reported on (2019) 4 SCC 162 the agricultural land is also covered under Section 22 of the Act and hence, both the Courts below ought to have granted preferential right in his favour. Hence, he would seek for allowing the appeal.
12. Per contra, the learned counsel for the respondents would contend that the land sold was separately situated and admittedly, the lands belong to plaintiff are not adjoining to the said land. He would also invite the attention of the cross examination of PW1 wherein he has admitted severance in joint family during the life time of his father itself prior to 1986 and hence,
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RSA No. 5654 of 2013question of enforcing preferential right at the belated stage does not arise at all. He would also assert that there was earlier partition and parties have already disposed of other properties which were not questioned and this disclose the mentality of the plaintiff and sought for dismissal of the appeal.
13. Having heard the arguments and perusing the records, there is no serious dispute of the fact that the plaintiff and defendant no.2 are brothers. It is also an admitted fact that defendant no.2 had filed O.S.No. 126/2001 seeking partition in the joint family properties and the said suit came to be dismissed and subsequently, it was remanded back. Both parties have not at all disclosed what is the fate of the suit after remand as from the available records, it is evident that in RFA 417/2008 c/w RFA 495/2008 the matter was remanded. Both the parties are silent regarding the ultimate out come of the O.S.No.126/2001.
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RSA No. 5654 of 2013
14. Since the plaintiff has approached this Court seeking preferential right, the initial burden is on him to establish as to what is the ultimate result of partition suit.
15. At the same time, it is also important to note here that the plaintiff herein was defendant no.1 in O.S.No.126/2001 and has contested the suit for partition on the ground of earlier partial partition pertaining to agricultural lands. Though in this proceedings, he disputed this aspect but, the records disclose that partial partition pertaining to agricultural land was admitted that too long back.
16. In this regard, cross examination of PW1 is also relevant wherein he has admitted that his father died in the year 1986. He also admits that in 1992 itself, they started residing separately. When a suggestion was made regarding partition in agricultural lands, he denied the said suggestion, but, he claims that his father mutated the names of respective parties to the separate properties. He further asserts that he do not know whether it was by way of partition or by way of gift. He is law graduate and when
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RSA No. 5654 of 2013he is a law graduate, it is hard to accept his explanation that he do know whether it was a partition or a gift. But, in unequivocal terms, he admitted that during life time of his father, he has mutated the names of receptive parties to different properties. Even in his cross-examination, he further admits that the property was allotted in his favour, he has got partitioned the same between himself and his son. If this admission is taken into consideration, then virtually he is admitting the earlier partition which now he is tries to dispute though he being a law graduate. Even during subsequent cross examination, he has also admitted that the name of his son is mutated to his share on the ground of partition and even he admitted that name of defendant no.2 was mutated in view of partition. He admits the mutation entries on the basis of partition and further admits that the other brothers and sisters have also got mutated the properties in their respective names.
17. Even he has admitted that defendant no.2 in 1997 itself sold some of the land to one Sanna Fakirappa
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RSA No. 5654 of 2013and he had knowledge of the same in 1997 itself. Interestingly, the plaintiff has not sought any preferential rights then and all along he asserts partial partition in agricultural land, but, now he is disputed partial partition and wants to take advantage of suit in OS no.126/2001 claiming that he has got preferential rights.
18. Further cross examination of PW1 disclose that in 1974 itself, the agricultural lands were mutated in his name as well as in the name of his brother separately. He has also admitted that defendant no.2 has mortgaged the suit schedule properties to State Bank of India and Pragrati Grameen Bank by availing loan of Rs.15,25,000/-. These admission on the part of PW1 clearly establish that since long time, the plaintiff and defendants are enjoying the agricultural lands independently and there was severance prior to the death of father itself as the father effected the partition. Same was also observed in RFA which was disposed off remanding OS No.126/2001. These findings prima facie establish severance at this juncture on the basis of available records.
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RSA No. 5654 of 2013
19. The plaintiff has filed the suit for preferential right in the year 2010. He did not issue any notice to defendant no.2 and his contention is that he has obtained injunction against him. Admittedly, the plaintiff had knowledge that defendant no.2 was making efforts to alienate the suit schedule property. In that event, he could have issued a notice to defendant no.2 expressing his willingness to purchase the suit schedule property by exercising preferential right under Section 22 of the Hindu Succession Act. But, he did not do so and obtained a injunction which disclose his intention. Section 22 of the Hindu Succession Act reads as under:-
22. Preferential right to acquire property in certain cases (1) Where, after the commencement of this Act, an interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolves upon two or more heirs specified in class I of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.
(2) The consideration for which any interest in the property of the deceased may be transferred under this
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RSA No. 5654 of 2013section shall, in the absence of any agreement between the parties, be determined by the court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incident to the application.
(3) If there are two or more heirs specified in class I of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred.
20. No doubt earlier Section 22 was not made applicable to agricultural lands. But, however, the Hon'ble Supreme Court in a decision reported in Babu Ram V/s. Santokh Singh (deceased) through his LRs. and others reported in 2019 (14) SCC 162 has held that Section 22 is applicable to agricultural lands also.
21. It is evident that preferential right can be exercised in any immovable property of a intestate. That means when the property is being inherited, the other coparceners can exercise the preferential right. The intention of the legislation is to see that a third person shall not come in a joint possession with other family members. However, in the instant case, the evidence disclose that the partition was effected in long back
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RSA No. 5654 of 2013pertaining to agricultural lands and suit lands were of all along enjoyed by defendant no.2 as his absolute properties. It is also evident that defendant no.2 has also sold some other properties in 1997 which were allotted to him which were also joint family properties. But, no preferential right was claimed in respect of those properties.
22. Further, as observed above, the plaintiff before institution of the suit has not issued any notice for exercising his preferential right to defendant no.1. Further, the other coparceners on Class I heirs of propositus were not included so as to exercise the preferential rights exclusively and he has also not moved any application before the Court for determining consideration and now, he submits that whatever the consideration amount paid by defendant no.1 to defendant no.2, he is prepared to pay it. But admittedly, defendant no.1 has improved the land. It was the duty of the plaintiff to move an application for determination of the consideration amount which he has not done. It is not in
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RSA No. 5654 of 2013dispute that the suit schedule properties are situated separately. In these suit lands, no share was allotted to the plaintiff and it is not the case that any portion of the said survey number is in his possession. Further, PW1 admitted that his property is not abutting the suit schedule properties and they are separately situated. When there was already partition long back, after lapse of so many years, question of exercising preferential right does not arise at all. No doubt the decision reported in Babu Ram V/s. Santokh Singh (deceased) through his LRs. and others reported in 2019 (14) SCC 162 referred above clarifies that preferential right under Section 22 of the Act is also applicable pertaining to agricultural lands. But, when the partition was effected long back, and for years together, the parties are enjoying property independently, the question of exercising preferential right at such a belated stage does not arise at all, that too when the parties have independently transacted in respect of various other properties.
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RSA No. 5654 of 2013
23. In view of the facts and circumstances and considering the conduct of the plaintiff and his cross examination, it is evident that he has not approached the Court with clean hands and taking inconsistent and contrary stands. When he himself has set up defence in OS no.126/2001 regarding partial partition to the agricultural lands long back, now, he is disputing this aspect and under such circumstances, the principles enunciated in the above said decision referred in Babu Ram's case cannot be made applicable as preferential right cannot be exercised at a belated stage when the parties have partitioned properties long back. Under these circumstances, the claim of the plaintiff is not sustainable.
24. He has not even made any efforts for depositing of the consideration amount and nor moved any application for determining the consideration amount. Admittedly, Defendant no.1 has developed the suit schedule property and the preferential right of other brothers is required to be considered and they were not impleaded in the suit and the plaintiff could have
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RSA No. 5654 of 2013impleaded them and then highest bidder would have been considered. None of these steps were taken by the plaintiff and he has simply filed the suit for enforcing his preferential right in respect of the property partitioned long back. Under such circumstances, the provision of Section 22 of the Act cannot be made applicable and the plaintiff by his conduct itself, waived his right in this regard. Hence, the substantial question is answered in the affirmative in favour of defendants. As such, the appeal being devoid of any merits does not survive for consideration. Accordingly, I proceed to pass the following:
ORDER The appeal stands dismissed.
Sd/-
JUDGE Vmb