Karnataka High Court
Somalingappa S/O Kallappa Naikar vs Shri Rudrayya S/O Shivarudrayya ... on 21 September, 2022
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21ST DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
REGULAR SECOND APPEAL NO.226 OF 2008
BETWEEN:
SOMALINGAPPA
S/O KALLAPPA NAIKAR
AGE 30 YEARS
OCC: AGRICULTURE
R/O HEBBALLI TALUK
DHARWAD DISTRICT - 580 007.
...APPELLANT
(BY SHRI ARUN NEELOPANT, SENIOR COUNSEL FOR
SRI B K MALLIGAWAD, ADVOCATE
THROUGH VIDEO CONFERENCING)
AND:
1. RUDRAYYA
SINCE DECEASED BY HIS LRS.
1A. SMT. PUSHAPTI
W/O RUDRAYYA HIREMATH
AGED 75 YEARS
1B. SOMASHEKAR
S/O RUDRAYYA HIREMATH,
AGED 52 YEARS
1C. UMADEVI
D/O RUDRAYYA HIREMATH
2
AGED 49 YEARS
1D. SADASHIV
S/O RUDRAYYA HIREMATH
AGED 46 YEARS
ALL ARE R/AT NO.122
MAHANTESHNAGAR
BELAGAVI.
2. NIRANJANAYYA
SINCE DEAD BY HIS LRS.
2A. SMT. GIRIJA
W/O NEERNAJAN HIREMATH
AGED 60 YEARS
OCC:HOUSEHOLD WORK
R/O UDAKERI, TALUK:BAILHONGAL
DISTRICT:BELGAUM-590 023.
2B. SMT. SUWARNA
W/O SANGAYYA CHARANTIMATH GADDIYAVAR
AGED 42 YEARS
OCC:HOUSEHOLD WORK
R/O UDAKERI, TALUK:BAILHONGAL
DISTRICT:BELGAUM-590 023.
2C. SRI TIRATAYYA
S/O NEERANJANYYA HIREMATH
AGED 37 YEARS
OCC:NOT KNOWN
R/O UDAKERI, TALUK:BAILHONGAL
DISTRICT:BELGAUM-590 023.
2D. SRI AJJAYYA
S/O NEERANJANYYA HIREMATH
AGED 32 YEARS
OCC:NOT KNOWN
R/O UDAKERI, TALUK:BAILHONGAL
DISTRICT:BELGAUM-590 023.
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3. SRI BASAVARAJ
S/O TEERATHAYYA HIREMATH
AGE 36 YEARS
OCC: UN-EMMPLOYED
R/O HEBBALLI
TALUK AND DISTRICT- DHARWAD-580 007.
4. SRI SHIVARUDRAYYA
S/O TEERATHYYA HIREMATH
AGE 20 YEARS
OCC:STUDENT
R/O HEBBALLI
TALUK AND DISTRICT- DHARWAD-580 007.
5. SRI GURURAJ
S/O VEERATAYYA HIREMATH
AGE 22 YEARS,
OCC: BUSINESS
R/O KOPPADAKERI
DHARWAD-580 006.
6. SRI VINAYAKA
S/O PARAMESHWARAYYA HIREMATH
AGE:MINOR
OCC:NIL
R/O SUNDATTI-590 0024.
7. SRI VISHWANATH
S/O PARAMESHWARAYYA HIREMATH
AGE MINOR
OCC: NIL
R/O SUNDATTI-590 024.
R6 AND 7 ARE BEING MINORS
REPRESENTED BY THEIR NEXT FRIEND
NATURAL GUARDIAN MOTHER SMT. DASKSHAYANI
W/O PARAMESHWARAYYA HIREMATH
R/O SAUNDATTI - 590 024.
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R2 TO 7 ARE REPRESENTED BY THEIR
SPECIAL POWER OF ATTORNEY HOLDER R1.
8. REVANSHIDDAYYA
SINCE DEAD BY HIS LRS.
8A. PREMA
W/O CHANNABASAYYA GANGADHARMATH
AGED 68 YEARS
OCC: GOVERNMENT NURSE
R/O YAVAGI, SAVANUR TALUK
HAVERI DISTRICT.
8B. GANGAMMA
W/O BASAVANNEYYA LAXMIPURMATH
AGE 65 YEARS
OCC:HOUSE HOLD
R/O BELAGALI PETE
TALUK HANGAL
DISTRICT HAVERI.
...RESPONDENTS
(BY SRI K L PATIL, ADVOCATE FOR R1(A-D), R2(A-D)
AND R3 TO 7;
SRI SHRIDHAR HIREMATH, ADVOCATE FOR R8A AND R8B)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CODE OF CIVIL PROCEDURE AGAINST THE
JUDGMENT AND DECREE DATED 20.12.2007 IN R.A.NO.34/2000
ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE C/C
PRESIDING OFFICER, FAST TRACK COURT NO.1 AT DHARWAD,
DISMISSING THE APPEAL AND FILED AGAINST THE JUDGMENT
AND DECREE DATED 16.10.2000 IN O.S.NO.133/1993 ON THE
FILE OF THE III ADDITIONAL CIVIL JUDGE (SR. DN.) AND CJM,
DHARWAD.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
This Regular Second Appeal is filed by the Defendant No.2 challenging the Judgment and Decree dated 20th December, 2007 in Regular Appeal No.34 of 2000 on the file of the Fast Track Court No.1 at Dharwad, confirming the Judgment and Decree dated 16th October, 2000 in Original Suit No.133 of 1993 on the file of the III Additional Civil Judge (Sr. Dn.) and CJM, Dharwad, decreeing the suit of the plaintiffs.
2. For the sake of convenience, the parties in this appeal are referred to with their status and rank before the trial Court.
3. It is the case of the plaintiff that, one Gangadharmath-grandfather of plaintiffs died leaving behind 03 sons viz., Channabasavaswamy (Channayya), Shivarudrayya and Gurulingaswamy. It is averred in the plaint that, partition deed dated 15th July, 1940 was executed between the family of the Gangadharmath and his children. In the said partition, Channabasavaswamy, being an eldest son of the Gangadharmath, was appointed as Mathadikari of the family 6 Mutt situate in the suit 'B' schedule property and as such, Schedule 'A' to 'C' properties were given to the Channabasavaswamy, in the capacity as a Mathadikari of the family Mutt. Apart from this, independent and separate property was given to him as a co-sharer in the partition. It is the case of the plaintiff that, the said Channabasavaswamy had no independent right, title or interest in respect of suit schedule 'A', 'B' and 'C' properties and the said Channabasavaswamy was holding the aforementioned schedule properties as a trustee of the family Mutt, along with the remaining two brothers viz. Shivarudrayya and Gurulingaswamy. In the partition dated 15th July, 1940, the said Channabasavaswamy was prohibited from creating any third party rights or alienating the suit schedule property, as the said Channabasavaswamy has to officiate as Mathadikari of the family Mutt and the said Mathadikari reign has to devolve by rotation in the family. Defendant No.1 is the son of Channabasavaswamy. The said Channabasavaswamy, in violation of the condition in the partition deed dated 15th July, 1940, alienated the property bearing No.651/1 of Hebballi, shown as Sl.No.1 in suit 'A' schedule property in favour of the 7 defendant No.2 by sale deed dated 04th June, 1990. On 06th June, 1991 Channabasavaswamy died. It is pleaded that, the defendant No.2, tried to interfere with the schedule properties and as such, the plaintiffs have filed suit in Original Suit No.133 of 1993 seeking declaratory relief that plaintiffs are entitled to hold the suit schedule properties after the death of Channabasavaswamy and to declare that the sale deed being executed by Channabasavaswamy and the defendant No.1 are not binding on the plaintiffs.
4. On service of notice, defendant No.1 remained absent and placed ex-parte. The defendant No.2 entered appearance and filed detailed written statement denying the averments made in the plaint. It is the specific case of the defendant No.2 that Channabasavaswamy and the defendant No.1 are the absolute owners of the schedule properties and accordingly sought for dismissal of the suit.
5. Based on the pleadings on record, the trial Court framed issues for its consideration. In order to prove their case, plaintiff No.1 was examined as PW1 and produced 26 documents 8 and the same were marked as Exhibits P1 to P26. Defendants have examined two witnesses as DW1 and DW2 and no documents were produced on behalf of the defendants. The trial Court, after considering the material on record, by its Judgment and Decree dated 16th October, 2000, decreed the suit holding that the sale deed dated 04th June, 1990 executed by Channabasavaswamy and defendant No.1 in favour of the defendant No.2 is not binding on the plaintiff. Feeling aggrieved by the same, the defendant No.2 has filed Regular Appeal No.34 of 2000 on the file of the First Appellate Court and the appeal was resisted by the plaintiffs. The First Appellate Court, after considering the material on record, by its Judgment and Decree dated 20th December, 2007 dismissed the appeal and being aggrieved by the same, defendant has presented this Regular Second Appeal.
6. This Court, by order dated 04th March, 2009 admitted the appeal and framed the following substantial questions of law for consideration:
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(1) Whether the manner of consideration of the partition deed at Exhibit P4 by the courts below has resulted in perverse finding and conclusion reached thereto?
(2) Whether the courts below were justified in noticing the recital in the partition deed at Exhibit P4 in the manner done to come to the conclusion that the property could not have been alienated?"
7. I have heard Sri Arun Neelopanth, learned Senior counsel for Sri B.K. Malligawad, counsel for the appellants; and Sri K.L. Patil, learned counsel appearing for respondents No.1(A to D) and Respondent No.2(A to D) and respondents 3 to 7; Sri Sridhar Hiremath, learned counsel appearing for respondents 8A and 8B.
8. Learned Senior counsel appearing for the appellant argued that both the Courts below have not considered the fact that, Channabasavaswamy and the defendant No.1 were enjoying the suit schedule property in their individual capacity 10 and therefore, the alienation of the property by them in favour of the appellant is just and proper. It is further contended that, the trial Court ought to have decreed the suit excluding the property purchased by the appellant herein as a bona fide purchaser since revenue records stand in the name of the Channabasavaswamy in his individual capacity and therefore, the learned Senior Counsel submits that finding recorded by both the Courts below requires to be interfered with in this appeal.
9. Per contra, Sri K.L. Patil, learned counsel appearing for the respondents R1(A-D), R2(A-D) and respondents 3 to 7, sought to justify the impugned Judgment and Decree passed by the Courts below. He emphasised that since the schedule property was earmarked for family Mutt in terms of the partition deed dated 15th July, 1940, the alienation, by way of sale deed by the defendant No.1 and his father, is non-est and the finding recorded by both the Courts below requires to be confirmed.
11. In the light of the submission made by the learned counsel for the parties, it is relevant to understand the pedigree of the parties, which reads as under:
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Gangadharamath (Propositus) Channabasavaswamy Shivarudrayya Gurulingaswamy (Channayya) Revanasiddayya Rudrayya Niranjanayya (Defendant No.1) (Plaintiff 1) (Plaintiff 2)
12. It is not in dispute that, the Gangadharmath was the propositus and the owner of the schedule properties. He died leaving behind three children viz. Channabasavaswamy, Shivarudrayya and Gurulingaswamy. Defendant No.1 is the son of Channabasavaswamy. Plaintiffs 1 and 2 are the children of Shivarudrayya and plaintiffs 3 to 7 are the siblings of Gurulingaswamy. Defendant No.2 is the purchaser of the schedule property as per the sale deed dated 04th June, 1990 from defendant No.1 and his father-Channabasavaswamy. I have perused the records and examined the finding recorded by both the Courts below. The relationship between the parties is not disputed. It is the case of the plaintiffs that the father of the defendant No.1-Channabasavaswamy had limited interest in 12 respect of the suit schedule property as the same was earmarked for the family Mutt. Since Channabasavaswamy was the eldest son of Gangadharmath as well elder brother of the Shivarudrayya and Gurulingaswamy, he was conferred with the schedule properties in capacity to head the Mutt and as per the recitals in the deed of partition dated 15th July, 1940.
13. On careful consideration of the evidence of the plaintiffs and on examination of the partition deed dated 15th July, 1940 (Exhibit P4), Channabasavaswamy has no authority to alienate or create any third party rights insofar as the schedule properties are concerned. Channabasavaswamy is holding limited right in respect of the schedule property in the capacity of Mathadikari of the family Mutt and has no absolute ownership insofar as the schedule properties and the schedule properties are remained as the joint family properties of the children of Gangadharmath. In this regard, on careful consideration of the finding recorded by the trial Court, I am of the view that, the trial Court rightly answered Issues 1 and 2 in favour of the plaintiffs and accordingly, the suit is decreed in favour of the 13 plaintiffs and as such, I do not find any perversity in the Judgment and Decree passed by the trial Court. The First Appellate Court, after considering the material on record, re- appreciated the entire material on record, in the light of the provisions contained under Order 41 Rule 31 of CPC, and had rightly come to the conclusion that Channabasavaswamy and the defendant No.1 have no authority to sell the suit schedule property in favour of the defendant No.2 and therefore, as both the Courts below have concurrently held that the schedule properties are the properties of the family Mutt, and same is in accordance with the oral and documentary evidence produced by the parties before the trial Court. Resultantly, the substantial questions of law framed by this Court as per partition deed at Exhibit P4 favours plaintiffs since the defendant No.1 and his father-Channabasavaswamy have limited right and have no absolute right to alienate the property in favour of the defendant No.2. In the result, appeal fails and accordingly dismissed.
SD/-
JUDGE lnn