Karnataka High Court
N Thyagaraju vs Ghouse Sheriff on 28 July, 2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A NO.434 OF 2021(DEC/INJ)
BETWEEN:
1. N THYAGARAJU
S/O LATE GURU NANJUNDAPPA,
AGED ABOUT 55 YEARS,
GRANDSON OF GURU YOGI ANNAYYAPPA,
CHAIRMAN, SRI ANNAYYAPPA SRIRAMASEVA
BHAKTARA MANDALI, NARASAPURA VILLAGE
AND HOBLI, KOLAR TALUK-563133
2. CHANDRAKALA
D/O KRISHNAPPA,
AGED ABOUT 38 YEARS,
SECRETARY,
SRI ANNAYYAPPA SRIRAMASEVA BHAKTARA MANDALI,
NARASAPURA VILLAGE AND HOBLI,
KOLAR TALUK-563133
...APPELLANTS
(BY SRI.JAUAHAR BABU, ADVOCATE)
AND:
1. GHOUSE SHERIFF
S/O IBRAHIM SHERISFF,
AGED ABOUT 62 YEARS,
R/O 773, FORT AREA, KOLAR-563101
2
2. SUSHEELAMMA
D/O KRISHNAPPA,
AGED ABOUT 84 YEARS,
R/O NARASAPURA VILLAGE AND HOBLI,
KOLAR TALUK-563133
KEMPANNA
S/O DASAPPA,
DEAD BY LRS.
3. NANJAMMA
W/O LATE KEMPANNA, MAJOR
4. K RAMACHANDRA
S/O LATE KEMPANNA, MAJOR
RESPONDENT NOS.3 AND 4 ARE
R/O KENDATTI GOLLAHALLI VILLAGE,
VOKKALERI HOBLI, KOLAR TALUK-563102
...RESPONDENTS
(BY SRI.ANANDA B V, ADVOCATE)
THIS RSA FILED UNDER SECTION 100 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 27.07.2020 PASSED IN
RA.NO.109/2017 ON THE FILE OF THE I ADDITIONAL DISTRICT
JUDGE, KOLAR, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 24.06.2017 PASSED IN
O.S.NO.277/2013 ON THE FILE OF THE I ADDL. SENIOR CIVIL
JUDGE, KOLAR.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
The captioned second appeal is filed by the unsuccessful plaintiff who has questioned the concurrent judgments and decrees of the Courts below.
2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court.
3. The facts of the case are as under:
The plaintiffs have instituted a suit in O.S.No.277/2013 seeking declaration and permanent injunction against the defendants. The plaintiffs claim that the suit schedule property was acquired by the grand father of plaintiff No.1 namely Annayyappa through a gift deed dated 26.07.1948 executed by one Kumbara Venkatappa, vide Ex.P2. Plaintiffs claim that the gift deed in favour of Annayyappa was with a condition to not to alienate the suit schedule property and the suit schedule property was to be used for construction of mutt and choultry. The plaintiffs claim that after the death of 4 Annayyappa, the original donee i.e., father of plaintiff No.1, namely Nanjundappa became the Vyavasthapaka of the mutt. By taking undue advantage of innocence of father of plaintiff No.1, defendant No.3 managed to get a fraudulent sale deed 11.7.1968 vide Ex.D2 in his favour, in gross violation of the condition in the gift deed. The defendant No.3 in turn has alienated the suit schedule property in favour of first defendant through registered sale deed dated 3.10.1998.
Therefore, the present suit is filed seeking the relief of declaration to declare the sale deeds dated 3.10.1998 and 11.7.1968 as null and void and illegal.
The learned Judge on appreciation of the oral and documentary evidence, has answered Issues 1 to 4 and 6 in the negative and issue No.5 in the affirmative. The Trial Court on appreciation of the oral and documentary evidence has specifically held that the suit is barred by limitation. Consequently, the suit is dismissed. The plaintiffs feeling aggrieved by the judgment and decree of the Trial Court 5 preferred a regular appeal in RA.No.109/2017. The Appellate Court having independently assessed the oral and documentary evidence has concurred with the findings and conclusions arrived at by the Trial Court. Consequently, the appeal is dismissed.
4. Heard the learned counsel for the plaintiffs and learned counsel for the defendants. Perused the judgments under challenge.
5. The plaintiffs claim is that the first alienation made in 1968 in favour of defendant No.3 vide Ex.D2 is in violation of condition imposed in the gift deed. Both the Courts have concurrently held that the said condition imposed in the gift deed vide Ex.P22 is void and unenforceable under Section 123 read with Sections 10 and 11 of Transfer of Property Act. Both the Courts have concurrently held that the decree passed against the first respondent's father and confirmed in RA.196/1974 has attained finality and therefore, the same 6 binds the first plaintiff also. Both the Courts have concurrently held that the other suit filed by the nephew of plaintiff No.1 in O.S.88/1999 is dismissed and confirmed by the Appellate Court in R.A.50/2006 as per Exs. D29 and 30 respectively wherein the suit schedule property was also the subject matter.
6. Both the Courts while recording the finding on merits have come to the conclusion that the present suit is barred by limitation. The first sale is dated 11.7.1968. The present suit is filed on 23.10.2013. Therefore, both the Courts have held that the suit is barred by limitation. If all these significant details are taken into consideration, this Court is of the view that no substantial question of law arises for consideration in this appeal.
7. The appeal is devoid of merits and accordingly, stands dismissed.
Sd/-
JUDGE *alb/-