Karnataka High Court
Sri M G Ningappa vs Sri Devaraj S/O Sri Kavalu Girigowda @ ... on 4 July, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2024:KHC:25349
RSA No. 101 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
REGULAR SECOND APPEAL NO. 101 OF 2013 (DEC)
BETWEEN:
SRI. M.G. NINGAPPA
S/O SRI. GOPEGOWDA
AGED ABOUT 52 YEARS
R/O MATADHA HOSAHALLY
DESHANE POST, JAVAGAL HOBLI,
ARSIKERE TALUK,
HASSAN DISTRICT 573 122
...APPELLANT
(BY SRI. A RAVISHANKAR.,ADVOCATE)
AND:
SRI. DEVARAJ
S/O SRI. KAVALU GIRIGOWDA @ GIRIGOWDA ,
Digitally signed AGED ABOUT 50 YEARS,
by
NARAYANAPPA PRESENTLY R/AT
LAKSHMAMMA GUDDADA KENGANAHALLY,
Location: HIGH HANDRALU POST, JAVAGAL HOBLI,
COURT OF
KARNATAKA ARSIKERE TALUK,
HASSAN DISTRICT 573 122
...RESPONDENT
(BY SRI. SHREEDEEP N., ADVOCATE FOR
SRI. NAGAIAH, ADVOCATE)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED 6.11.2012 PASSED IN
R.A.NO.82/2008 ON THE FILE OF SENIOR CIVIL JUDGE &
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NC: 2024:KHC:25349
RSA No. 101 of 2013
J.M.F.C., ARSIKERE, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DATED 9.7.2008
PASSED IN OS.NO.141/06 ON THE FILE OF ADDITIONAL CIVIL
JUDGE (JR.DN.) AND JMFC, ARSIKERE.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. The appellant, who is the defendant in O.S.No.141/2006 and the appellant in R.A.No.82/2008 is before this Court challenging the concurrent findings of the Trial Court and the First Appellate Court. The respondent had filed a suit in O.S.No.141/2006 seeking for the following reliefs:-
"Declaration that the suit schedule properties are his ancestral properties and the Sale Deed dated
31..07.1997 is not binding on him and also for possession of the suit schedule properties and mesne profits"
2. The Trial Court vide its judgment dated 09.07.2008 decreed the suit, the operative portion of the said decree reads as under :-
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NC: 2024:KHC:25349 RSA No. 101 of 2013 "Suit of the plaintiff is hereby decreed with costs as follows :-
1. Hereby declared that suit schedule properties are the ancestral properties of the plaintiff.
2. Hereby declared that the Sale Deed dated 31.7.97 executed by Sakamma in favour of defendant with respect to suit schedule properties is not binding on the plaintiff.
3. Defendant is hereby directed to handover the possession of the suit schedule property to the plaintiff within three months from the date of this judgment.
Plaintiff is entitled to get mesne profits with respect to suit schedule property, from the date of suit till the date of delivery of possession. There shall be separate enquiry U/O 20 R.12 CPC for mesne profits."
3. The defendant took up the same in an appeal before the First Appellate Court in R.A.No.82/2008. The First Appellate Court dismissed the said appeal and confirmed the judgment and decree of the Trial Court. It is challenging the same, the defendant is before this Court. The above appeal was admitted on 17.04.2013 to answer the following substantial questions of law:-
"Whether, on the admitted facts of the case, both the courts below had erred in law in -4- NC: 2024:KHC:25349 RSA No. 101 of 2013 declaring the plaintiff as the absolute owner of the entire suit properties totally measuring one acre ?"
4. Sri A. Ravi Shankar, learned counsel for the appellant would submit that though in the suit there were several issues raised and pleading taken up, and arguments advanced as regards the adoption of the plaintiff/Devaraju by Sri. Ajjegowda and Sakkamma, he does not now wish to press into service any of those pleadings or arguments.
5. His submission now is that the family was owning 5 acres of land, upon expiry of Ajjegowda, his wife Sakkamma sold one acre of the said land in favour of the defendant. This one acre can be considered to be from and out of the entitlement of Sakamma inasmuch as family owning five acres of land, on the expiry of Ajjegowda there is notional partition between Ajjegowda and the plaintiff/Devaraj, each being entitled to 2 acres 20 guntas of land. -5-
NC: 2024:KHC:25349 RSA No. 101 of 2013
6. Upon the expiry of Ajjegowda, the property falling to the share of Ajjegowda would devolve upon and have to be partitioned amongst Sakkamma and Devaraj, each of them being entitled to 1 acre 10 guntas of land. The property sold in favour of the defendant being one acre, which is lesser than the entitlement of Sakamma, would not in any manner impinge upon the rights of Devaraj in the entire property. Even if the said sale is held not to be binding on Devaraj's share, it would be binding on Sakkamma's share, since the execution of the sale deed is not in dispute and the entitlement of the defendant under the said sale deed is not in dispute. Therefore, he contends that this aspect has not been considered in the proper perspective by the trial Court and the First Appellate Court.
7. Sri Shreedeep N., learned counsel appearing for Sri Nagaiah, learned counsel for the respondent would submit that the plaintiff was not a party to the -6- NC: 2024:KHC:25349 RSA No. 101 of 2013 sale deed executed by Sakamma, therefore, the said sale cannot be binding on the share of the plaintiff. The plaintiff's adoption having been established and the plaintiff succeeding to the joint family properties of Ajjegowda, he would have a right on the entire property. Sakkamma could not have sold the property by metes and bounds and demarcated a particular extent of land for sale in favour of the defendant. Thus he submits that the Trial Court and the First Appellate Court have rightly considered the dispute between the parties and the judgment passed them are proper and correct, not requiring this Court to interfere in the matter.
8. Heard Sri. A Ravi Shankar, learned counsel for the appellant and Sri Shreedeep N., learned Counsel for Sri. Nagaiah, learned counsel for the respondent and perused the records.
9. As rightly contended by Sri A. Ravi Shankar, learned counsel for the appellant, it would not be required for -7- NC: 2024:KHC:25349 RSA No. 101 of 2013 the appellant to have, in any manner questioned the adoption of the plaintiff. It is due to the said questioning that the litigation persisted between the parties from the year 2006 till now. What was sold to the defendant was only one acre of land, which could have been, before the trial court acceded to and submitted that it is the only said one acre, which the defendant is involved, which should have been fallen to the share of Sakamma by applying the principles of notional partition.
10. Instead of doing so having challenged the adoption, the Trial Court and the First Appellate Court had to deal with that issue in extensio. However, even the Trial Court has observed that the sale deed dated 31.07.1997 executed by Sakkamma in favour of the defendant with respect to the suit schedule property is not binding on the plaintiff. The sale deed has not been set aside by the Trial Court, nor it been -8- NC: 2024:KHC:25349 RSA No. 101 of 2013 declared as invalid as sought for by the plaintiff in the prayer column of the suit.
11. The Trial Court at paragraph 13 has also come to the conclusion that the defendant is entitled to share of Sakamma and that she has to get that share by proper procedure i.e., by way of filing a suit for partition. However the Trial Court taking into consideration that the defendant is in possession of the property has directed the defendant to hand over possession to the plaintiff.
12. It is this finding which in my considered opinion, ought not to have been rendered by the trial Court. The sale deed having been executed as regards an extent of land which is within the ambit of her share in the property and the defendant having been put in possession of the property, while relegating the defendant to a suit for partition ought not to have directed to hand over possession of the property to the plaintiff. The sale deed being admitted by one -9- NC: 2024:KHC:25349 RSA No. 101 of 2013 and all, the possession of the property being with the defendant having been admitted by the plaintiff, it is seen that undivided interest in the land has been sold in favour of the plaintiff identified by metes and bounds. More so, when the defendant has been put in physical possession of the property sold in his favour.
13. In that view of the matter, I am of the considered opinion that the direction insofar as directing the defendant to hand over possession of one acre of land to the plaintiff is concerned, is not substantiated either on law or on facts. Hence the substantial question of law raised is answered by holding that the trial Court and the First Appellate Court ought not to have declared the plaintiff as the absolute owner of the entire suit schedule property including the one acre of land sold by Sakkamma from and out of her share in favour of the defendant.
14. In that view of the matter, I pass the following :-
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NC: 2024:KHC:25349
RSA No. 101 of 2013
ORDER
i. The appeal is partly allowed.
ii. The judgment of the Trial Court is modified in the
following terms:
(a) The suit schedule properties are declared to be
the ancestral properties.
(b) The sale deed dated 31.07.1997 executed by
Sakamma in favour of the defendant with respect to the suit schedule property is held to be not binding on the share of the plaintiff in the suit schedule property.
(c) The defendant being in possession of the land covered under the sale deed dated 31.07.1997 would be entitled to continue in possession of the said land.
In the event of either of the parties wanting to reallocate the properties, the parties would be at liberty to initiate final decree proceedings in terms of the above.
(d) The sale having been executed in favour of the defendant on 31.07.1997 and valuable consideration
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NC: 2024:KHC:25349 RSA No. 101 of 2013 having been paid, there would be no enquiry required into mesne profits. It is declared that the plaintiff would not be entitled to any mesne profits.
15. Pending I.A.No.2/2013 if any, stands disposed of.
Sd/-
JUDGE NG List No.: 3 Sl No.: 9 CT:SNN