Karnataka High Court
Saroja W/O Sharanappa Musakinabavi vs Basavaraj S/O Gurupadapap Beeranur on 15 February, 2022
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 15TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A.NO.100838 OF 2014 (DEC/INJ)
BETWEEN:
1. SAROJA W/O SHARANAPPA
MUSAKINABAVI, AGE: 53 YEARS,
OCC: HOUSEHOLD & AGRI
R/O LAKKUNDI, TAL & DIST: GADAG-582101
2. KUMARI CHANNAVVA
D/O SURESH HOSAMANI,
AGE: 20 YEARS, OCC: HOUSEHOLD,
R/O LAKKUNDI, TAL & DIST: GADAG-582101.
3. KUMARI SUREKHA
D/O SURESH HOSAMANI,
AGE: 16 YEARS, OCC:STUDENT,
R/O LAKKUNDI,
TAL & DIST: GADAG.
REPRESENTED BY HER M/G NATURAL
FATHER SURESH S/O BASAVANTAPPA
HOSAMANI, OCC: SERVICE,
R/O ABBIGERI, TQ & DIST: GADAG-582101.
4. SURESH
S/O BASAVANTAPPA HOSAMANI,
AGE: 47 YEARS,
OCC: SERVICE, R/O ABBIGERI,
TAL & DIST: GADAG-582101.
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...APPELLANTS
(BY SRI.S.A.AKALAWADI ADV. FOR SRI.PRUTHVI K.S., ADV.)
AND:
1. BASAVARAJ S/O GURUPADAPPA
BEERANUR, AGE: 52 YEARS,
OCC: AGRICULTURE,
R/O HOLEALUR, TAL: RON,
DIST: GADAG-582101.
2. RENUKAPRASAD
S/O SHIDDALINGAYYASWAMI HIREMATH,
AGE: 37 YEARS, OCC: BUSINESS,
PROPRIETOR, NOW AT VIJAYA BOOK
DEPOT STATION ROAD, GADAG,
DIST: GADAG.
OLD R/O 8TH CROSS, K.C.RANI ROAD,
DIST: GADAG-582101.
...RESPONDENTS
(BY SRI.GIRISH S.HIREMATH, ADV. FOR C/R2)
THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL
PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 25.08.2014 PASSED BY THE SENIOR CIVIL JUDGE, RON IN
RA NO.04/2014, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 03.01.2014 PASSED BY THE
PRINCIPAL CIVIL JUDGE AND JMFC, RON IN O.S.167/2011, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The captioned second appeal is filed by unsuccessful defendant Nos.2 to 4 who are questioning the concurrent judgment and decree of the Courts below wherein suit filed by the respondent/plaintiff is decreed declaring respondent/plaintiff as absolute owner of the suit schedule property and consequently, perpetual injunction is granted restraining the present appellants from interfering with the respondent/plaintiff possession over the suit schedule property.
2. The facts leading to the case are as under:
The respondent/plaintiff is asserting right and title over the suit schedule property on the basis of registered sale deed dated 20.05.1999. The respondent/plaintiff has claimed that the suit schedule property was originally owned by one Bheemappa Bellad who had two sons by name Shivappa and Maribasappa. It is not in dispute that suit property was 4 allotted to the share of Maribasappa as per mutation entry No.436. The respondent/plaintiff further claimed that Maribasappa had no issues and he died leaving behind his wife Sangavva as the only surviving legal class-I heir. It is further stated that the said Sangavva became absolute owner of the suit land and on account of old age, she was being looked after by defendant No.1 and therefore, out of love and affection transferred the suit land by giving a vardi to the Village Accountant in the year 1989 i.e., 20.08.1989 and accordingly, name of defendant No.1 was mutated to the revenue records. In 1995, the defendant No.1 sold the suit land to one Basavaraj Kellur under registered sale deed. The said Basavaraj Kellur in-turn sold the suit land under registered sale deed dated 20.05.1999 in favour of the present respondent/plaintiff. Therefore, the respondent/plaintiff by placing reliance on a registered document asserted right and title and claimed that he is the absolute owner of the suit schedule property. The cause of action to file the present suit 5 is on account of defendant Nos.2 to 5 filing a collusion suit in O.S.No.38/2011 seeking partition and separate possession. Hence, respondent/plaintiff filed the present suit in O.S.No.167/2011 seeking relief of declaration and consequential relief of injunction.
3. On receipt of summons, the present appellants who were arrayed as defendant Nos.2 to 5 contested the proceedings. The appellant Nos.2 and 4 filed written statement whereas defendant Nos.3 and 5 were placed exparte. The appellant Nos.2 and 4 also admitted that suit property originally belonged to Bheemappa and after his death his two sons succeeded to the suit schedule property and the same was allotted to Maribasappa. However, the present appellants specifically contended that after death of Sangavva, the present appellants have also inherited the property under Section 15(1) of Hindu Succession Act and therefore, claimed that defendant Nos.1 to 5 i.e., appellants and defendant No.1 are joint owners of the suit land.
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4. The Trial Court having assessed oral and documentary evidence has accepted the case of the respondent/plaintiff. While answering issue Nos.1 to 4 in the affirmative, the Trial Court though has recorded a categorical finding that respondent No.1/defendant No.1 had no absolute right to execute sale deed in respect of entire extent. The Court found that defendant No.1 had no authority to sell the entire extent. At the same time, the Trial Court was of the view that defendant Nos.2 to 5 who were also entitled for share in the suit land, as they are class-II heirs. The Trial Court was of the view that as on the date of filing of the suit by the respondent No.2/plaintiff, almost 16 years have lapsed and defendant Nos.2 to 5 have not chosen to contest both the sale deeds. Therefore, Trial Court was of the view that based on a registered document, respondent/plaintiff has acquired right and on account of lapse of 16 years wherein family of defendant Nos.2 to 5 has lost possession have not taken any steps to file appropriate suit within 12 years as prescribed 7 under Article 109 of Limitation Act. Therefore, Trial Court has proceeded to answer issue No.1 in the affirmative declaring the respondent/plaintiff as the absolute owner of the suit schedule property.
5. While dealing with issue Nos.2 and 3, the Trial Court has come to conclusion that the evidence on record would clearly indicate that it is the respondent No.2/plaintiff who is in lawful possession over the suit schedule property and his possession is supported by registered sale deed in his favour. Therefore, the Trial Court was of the view that respondent No.2/plaintiff has succeeded in establishing his lawful possession and also interference by the present appellants/defendant Nos.2 to 5. On these set of reasonings, the Trial Court has proceeded to decree the suit declaring the respondent No.2/plaintiff as absolute owner and has proceeded to grant perpetual injunction thereby restraining the present appellants from interfering with respondent 8 No.2/plaintiff's peaceful possession and enjoyment over the suit schedule property.
6. Feeling aggrieved by the judgment and decree of the Trial Court, the present appellants preferred an appeal before the Appellate Court. The Appellate Court on appreciation of ocular and documentary evidence independently has also come to conclusion that the admitted facts and the material on record would clearly indicate that the present appellants are also class-II heirs of Smt. Sangavva and therefore, the schedule land would also devolve upon the present appellants under Section 15(1)(b) of the Hindu Succession Act. However, the Appellate Court was also of the view that defendant No.1 sold the suit land in favour of Basavaraj Kellur way back in 1995 who in-turn has sold the suit schedule property in favour of respondent No.2/plaintiff under registered sale deed dated 20.05.1999 as per Ex.P-5. The Appellate Court has also taken judicial note of the fact that Sangavva during her lifetime has not disputed the 9 mutation produced at Ex.D-5. The Appellate Court has also taken note of the fact that Sangavva died in 2007. The Appellate Court was also of the view that in terms of Article 109 of Limitation Act, the defendant Nos.2 to 5 having lost possession have not taken steps questioning the alienation of ancestral property within 12 years and therefore, the Appellate Court was also of the view that the right, if any, of defendant Nos.2 to 5 is lost and therefore, defendant Nos.2 to 5 cannot resist as they have not chosen to challenge the sale deed in favour of Basavaraj and subsequent sale deed in favour of respondent No.2/plaintiff. On these set of reasonings, the Appellate Court has also proceeded to concur with the judgment and decree of the Trial Court and consequently, the appeal is dismissed.
7. Heard the learned counsel appearing for the appellants. Perused the judgment under challenge.
8. The material on record would clearly indicate that one Sangavva inherited the property left behind by her 10 husband Maribasappa and she became the absolute owner of the suit land. It is also forthcoming from the records that on account of her old age, she transferred the suit land only by way of vardi. Though defendant No.1 did not acquire any right and title based on a vardi, however, he had 1/5th share in the suit land as a class-II heir and he inherited the property along with his brothers i.e., defendant Nos.2 to 5 under Section 15(1)(b) of Hindu Succession Act. However, asserting absolute right based on a vardi, the respondent No.1/defendant No.1 sold the suit land in favour of Basavaraj Kellur under registered sale deed in 1995. The said Basavaraj Kellur in-turn has sold the suit land in favour of the respondent No.2/plaintiff under registered sale deed dated 20.05.1999. The present suit is filed by the respondent No.2/plaintiff asserting absolute ownership and also possession in the year 2011.
9. When there is a registered document, the respondent No.2/plaintiff obviously would acquire a voidable 11 title under the registered sale deed executed by Basavaraj Kellur. If these two registered documents are taken into consideration, then I am of the view that both the Courts were justified in holding that the registered sale deeds in favour of respondent No.2/plaintiff and earlier sale deed which was in favour of plaintiff's vendor namely Basavaraj Kellur have gone unchallenged. Therefore, the vendor of the respondent No.2/plaintiff and in-turn respondent No.2/plaintiff would acquire a voidable title in the suit land. The present appellants have not chosen to either challenge the said alienation which has taken place in 1995 nor they have filed a suit for partition and separate possession immediately as their family lost possession way back in 1995 on account of alienation by respondent No.1/defendant No.1. It is in this background, both the Courts have proceeded to declare respondent No.2 as absolute owner of the suit schedule property by placing reliance on the registered sale deed dated 20.05.1999.
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10. I do not find any illegality or infirmity in the judgment and decree of the Courts below. Based on a registered document, respondent No.2 has acquired a voidable title and the same is not at all questioned by the present appellants till this date. In that view of the matter, no substantial questions of law arises for consideration. Accordingly, the appeal is dismissed.
Sd/-
JUDGE CA