Karnataka High Court
Sri S B Ramesh vs Sri S B Mohan on 26 June, 2024
Author: V Srishananda
Bench: V Srishananda
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RSA No. 975 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR SECOND APPEAL No.975 OF 2012 (DEC)
BETWEEN:
1. SRI S B RAMESH
S/O LATE BASAPPA
SINCE DEAD REPRESENTED BY LEGAL
REPRESENTATIVES
1(a) SMT. MALA
W/O LATE S.B.RAMESH
AGED ABOUT 43 YEARS
1(b) MR.RAMESH
S/O LATE S.B.RAMESH
AGED ABOUT 23 YEARS
1(c) MISS.RAKSHITHA
D/O LATE S.B.RAMESH
Digitally AGED ABOUT 21 YEARS
signed by
MALATESH
KC NO.1(a) to 1(c) ARE RESIDENTS OF
KODIHALLI VILLAGE
Location:
HIGH TARIKERE ROAD
COURT OF BHADRAVATHI TALUK
KARNATAKA SHIVAMOGGA DISTRICT-577 201
2. S B SURESH
S/O LATE BASAPPA
AGED ABOUT 38 YEARS
AGRICULTURIST
R/O KODIHALLI VILLAGE
TARIKERE ROAD,
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RSA No. 975 of 2012
BHADRAVATHI TALUK
SHIMOGA DISTRICT-577 201
...APPELLANTS
(BY SRI K N DAYALU, ADVOCATE)
AND:
1. SRI S B MOHAN
S/O LATE BASAPPA
AGED ABOUT 50 YEARS
AGRICULTURIST
R/O KODIHALLI VILLAGE
TARIKERE ROAD,
BHADRAVATHI TALUK
SHIMOGA DISTRICT-577 201
2. SRI M SADANANDA SHETTY
S/O MUDDANNA SHETTY
AGED ABOUT 60 YEARS
CONTRACTOR
R/O KESAVAPURA EXTENSION
NEW CHURCH, OLD TOWN
BAHDRAVATHI-577 301
3. SMT. NIRMALAMMA
W/O LATE KRISHNAPPA
AGED ABOUT 48 YEARS
HOUSE HOLD WORK
R/O ATTIGUNDA VILLAGE
ARALIHALLI POST, BHADRAVATHI TALUK
SHIMOGA DISTRICT-577 201
4. SMT. KAMALAMMA
W/O LATE BASAVARAJAPPA
AGED ABOUT 45 YEARS
HOUSE HOLD WORK
R/O UPPAR STREET
NEAR KENCHIBEGILU
BHADRAVATHI TALUK-577 301
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RSA No. 975 of 2012
5. SMT. HALAMMA
W/O LATE RAMACHANDRAPPA
AGED ABOUT 43 YEARS
HOUSE HOLD WORK
R/O KODIHALLI VILLAGE
TARIKERE TAO RAD
BHADRAVATHI TALUK-577 301
...RESPONDENTS
(BY SRI S V PRAKASH, ADVOCATE FOR R2)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 17.12.2011 PASSED IN
R.A.NO.36/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE &
JMFC., BHADRAVATHI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 01.06.2009
PASSED IN O.S.NO.470/1992 ON THE FILE OF THE I ADDL.
CIVIL JUDGE (JR.DN) & JMFC, BHADRAVATHI.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri K.N.Dayalu, learned counsel for the appellants and Sri S.V.Prakash, learned counsel for the respondent No.2.
2. The second appeal is filed by the plaintiffs in O.S. No. 470/1992 on the file of the First Additional Civil Judge, Junior Division and JMFC, Bhadravati. Suit is one for declaration and partition.
3. Said suit on contest came to be dismissed by a considered judgment dated 01.06.2009 which was challenged in RA No.36/2009. Said appeal filed by the plaintiffs also got dismissed by considered judgment dated 17.12.2011.
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4. Being agreed by the concurrent findings of dismissal, plaintiffs have preferred the present second appeal on the following grounds.
Both the courts have wholly erred in dismissing the suit of the plaintiffs and confirmation of the same by the first appellate court Hence, the judgment and decree of both the courts are illegal, unlawful and opposed to law and the same are liable to be set aside by decreeing the suit of the plaintiffs.
In the cross examination of PW1-Ramesh, he has stated that he has studied only up to 4th standard and further has stated that he was studying 5th standard and he left in between the period. Further he has stated that when his father died, he was 14 years old.
At page 4 of the deposition, the PW1 has stated, the mother died out of the agony of the death of his father and has denied the suggestion that her mother died of cancer. He has denied the suggestions that his mother was suffering from cancer and that the I defendant spent money to his mother. Further suggestion that the first defendant had taken the mother for treatment to Bangalore and that he had spent lot of money for her in Bangalore is denied by the PW1. He has stated that the mother is taken to the cancer hospital for treatment is true, but does not mean for treatment to cancer. It is a fact admitted by the I plaintiff, that the II Plaintiff is the younger brother of the I plaintiff studied only up to 5th standard.
-5-NC: 2024:KHC:24154 RSA No. 975 of 2012 Further, the suggestion made that the father of the II defendant namely Muddanna Shetty was a tenant in the schedule property is admitted as true. Further suggestion that during the life time of the father of the Plaintiff, the property was sold is denied. Further suggestion that the I defendant has performed the marriage of his sisters is denied by the PW1 and he has answered, his father has performed the marriage of his sisters. The PW1 has stated that the marriage of his sister N.T.Halamma was performed about 9 years back.
At page 5 of the cross examination, the suggestion made that the I defendant had incurred loan for performing the marriage of Halamma is denied. It is denied by the PW1 that the marriage of Halamma was after the death of his mother. The PW1 has stated that, he is not aware as to what was the rent, the father of the II defendant was paying. The PW1 has stated that they have 1¾ of land they grow paddy in the said land. The I Plaintiff has further stated that they had earnings of about 25 to 30 thousand from the said land. It is suggested that the Plaintiffs had no income of Rs.25 to 30 thousand is denied. It is denied that the Plaintiffs had only the income of the schedule property and the PW1 has further stated that the father of the Plaintiffs had acquired two acres of Land out of his self earnings and that they had income from that land.
At para 6 of the deposition, the PW1 has stated that he is not aware of the suggestion that, the I defendant along with his sisters had sold the schedule property measuring 9% feet x 55 feet for Rs.49,500/-. It is denied by the PW1, that because of the Plaintiffs were minors, the I defendant as guardian to the plaintiffs has sold the schedule property along with his sisters.
-6-NC: 2024:KHC:24154 RSA No. 975 of 2012 The further suggestion that the schedule property was sold by the I defendant for education of the plaintiffs, mother's cancer treatment and for performing the marriage of his sisters is denied by the PW1.
Further suggestions made that the tiled house measuring 25 ft x 50 ft, property of his grandfather at Boothanagudi was sold to one Prabhakar. Since the Plaintiffs had no interest in the education, the I plaintiff was doing agriculture. It is further stated that the plaintiffs and the I defendant are not in good terms and the suggestion that the plaintiffs and the I defendant are in good terms from the past 4-5 years is denied. The suggestion made that neither the plaintiffs nor the I defendant have got any manner of right in the schedule property.
The suggestion made that the schedule property was sold for the education, mothers illness and sisters marriage is denied The suggestion made that the plaintiffs neither have any right nor entitled for share in the property is denied by PW1.
Thus from the cross examination nothing is elicited in the cross examination of PW1. The II defendant, though has not proved that the I defendant had incurred loan and also sold the schedule property for the education of the plaintiffs, for the treatment of their mother and for performing the marriage of the sister of the plaintiffs. Though nothing is proved by the II defendant that for the said purposes, the property was sold by the I defendant to the II defendant. Admittedly, the plaintiffs have not completed even the 5th Standard, the question of educating them and incurring the loan for the said purpose is -7- NC: 2024:KHC:24154 RSA No. 975 of 2012 falsified. Even there are no materials placed by the II defendant to show that out of the money of the sale consideration, the I defendant educated the plaintiffs, got the medical treatment to his mother and performed the marriage of his sister Halamma.
The recital in the sale deed dated 26.05.1986 may be verified wherein it is recited that the sale is made for the purpose to clearing the loan incurred by the father of the plaintiffs during his life time, for treatment of the cancer of his mother and to educate the minor brothers and to clear the loan incurred for performing the marriage of his sister Halamma, though the same is not proved, the court below and the appellate court failed to appreciate the important evidence and the cross examination of PW1 and thus trial court dismissed the suit of the plaintiffs and the I appellate court confirmed the judgment and decree passed by the trial court with erroneous conclusions & without appreciating the case of the Plaintiffs.
The averment made in para 5 of the plaint that the plaintiffs were under the impression that the defendant No.2 is still continuing as a tenant, but when the defendant No.2 was constructing the building on the said site, on enquiry it is learnt that the defendant No.1 had executed a sale deed in favour of the defendant No.2 is not disputed which statement made in the plaint is not disputed by the Defendant No.2- Sadananda Shetty either in the cross examination of PW-1 or in his examination in chief."
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5. The substantial questions of law are raised in the appeal memorandum as under:
(i) Whether plaintiff prove that they along with first defendant are the owners of the suit schedule property, having secured the same through their father?
(ii) Whether they further prove that the sale of the suit schedule property on 26.05.1986 by the first nd defendant in favour of the 2 defendant is not binding on them?
(iii) Whether plaintiffs are entitled for the relief of declaration and partition by metes and bounds and for separate possession of their share in the suit property as prayed in the plaint?
(iv) Whether the suit is barred by limitation?
(v) Whether the second defendant proves that the first defendant was the manager and Kartha of family of plaintiffs and 1st defendant and he sold away suit property in his favour for family necessity and therefore, the sale is binding upon the plaintiffs?
(vi) Whether the suit is bad for non joinder of necessary parties?
(vii) What decree or order, the parties are entitled?-9-
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6. To appreciate the case of the appellant, it is just unnecessary for this court to discuss few essential facts which are culled out as under.
7. Plaintiff Nos.1 and 2 and first defendant are direct brothers and suit property was sold by defendant No.1 in favour of defendant No.2. It is contended that part of the suit property was part of the joint family property inherited from the father of Plaintiffs and defendant No.1 through registered sale deed dated 31.10.1972.
8. It is also contended that suit property was in possession of defendant No.2 as a tenant earlier to the sale and he was running hotel business in the name and style of Shree Sudarshan Hindu Military Hotel.
9. The sale deed dated 26.05.1986 executed by first defendant in favour of second defendant did not bind the plaintiffs, as defendant No.1 would not have acted as guardian for and on behalf of the minor plaintiffs in parting away the property in favour of second defendant under the said sale deed and at the most, the right, title and interest possessed by
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NC: 2024:KHC:24154 RSA No. 975 of 2012 the plaintiffs to the extent of 1/3rd share in the suit property could alone be the subject matter of sale and balance 2/3rd share possessed by the plaintiffs has not been transferred in the sale lead in favour of the defendant No.2 and therefore, suit for declaration and partition was filed by the plaintiffs.
10. Defendants entered appearance and resisted the suit claim by filing detailed written statement.
11. Thereafter, learned trial judge raised necessary issues and the matter was adjudicated and suit was decreed.
12. Defendants filed an appeal and in the appeal matter got remitted to the trial court and thereafter additional issues were framed by the trial court and fresh adjudication took place.
13. After the fresh adjudication, learned Trial judge heard the parties and dismissed the suit by holding that plaintiffs failed to prove that alienation made by defendant No.1 did not bind the plaintiffs.
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14. No doubt, question of limitation was held in favour of plaintiffs but the title as is enunciated by the plaintiffs was negated by the learned trial Judge.
15. Being aggrieved by the dismissal of the suit, plaintiffs filed an appeal before the first appellate court in RA No.36/2009.
16. Learned Judge in the First Appellate Court, after securing the records, heard the parties in detail and recorded a categorical finding in paragraphs 17 and 18 as under and dismissed the appeal:
"17. In this case, the specific contention of the plaintiffs is that, though their mother was suffering from Cancer, their uncle had incurred all the medical expenses of her motor, who being a Medical Practitioner at Bangalore. As their uncle was taking care of treatment of their mother, there was no necessity for availing loan for the treatment of their mother. But, as rightly observed by the trial court, the plaintiffs have not at all cared to examine their uncle, who is a Medical Practitioner at Bangalore to prove that, it is who has taken care of treatment of mother of plaintiffs and defendants No.1 and 3 to 5. In the absence of such necessary evidence, the court is of the considered opinion that the defendant No.1 has incurred expenses towards treatment of their mother, who was suffering from Cancer
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NC: 2024:KHC:24154 RSA No. 975 of 2012 disease. Moreover, the plaintiffs Nos.1 and 2 have admitted that, the marriage of defendant No.5 was performed after the death of their father and mother by defendant No.1. Which itself is sufficient to show that the defendant No.1 had legal necessity to avail loan from the defendant No.2 and other persons for performing the marriage of her sister defendant No.5. The defendants No.3 to 5 have also affixed their signature to the sale deed, which is executed in respect of suit schedule property. In favour of defendant No.2. Which clearly goes to show that they were very much aware about the sale of suit schedule property by 1 defendant in favour of 2nd defendant for legal necessity. The averment of the sale deed itself reveals that the defendant No.1 had availed some loan for the purpose of marriage of defendant No.5 and for the treatment of his mother, who was suffering from Cancer disease. Which goes to show that there was legal necessity for sale of suit schedule property In favour of defendant No.2 by the defendant No.1, as a manager of the family during the minority of plaintiffs No.1 and 2. When that is so, the court is of the considered opinion that the sale made by the defendant No.1 in respect of suit schedule property in favour of defendant No.2, for himself as well as on behalf of minor plaintiffs No.1 and 2, is binding on the plaintiffs as well as defendant Nos.3 to 5. The plaintiffs cannot question the sale made by the defendant No.1 for legal necessity.
18. The learned counsel for the plaintiffs has argued that, as the Hon'ble Appellate Court has not at all given any findings with regard to issue No.2 to 6, they need not be
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NC: 2024:KHC:24154 RSA No. 975 of 2012 discussed once again by the trial court. But, the trial court has re-appreciated the evidence with regard to issue Nos.2 to 6. As such, the judgement and decree of the trial court is unsustainable in law. But, a perusal of judgement and decree of Appellate Court in R.A.No.419/2004, clearly reveals that the judgement and decree of the trial court was set aside and remanded the proceedings to the trial court with a direction to implead all the necessary parties and to include all the joint family properties in the schedule and further it is directed to frame-fresh issues on the basis of additional pleadings of the parties including the issue with regard to legal necessity for sale of the schedule property. When that is so, the court is of the considered opinion that the trial court has acted in accordance with the directions of the Appellate Court in RA.No.419/2004 and has given an opportunity to the plaintiff to implead all the necessary parties, But, even then, the plaintiffs have not included all the joint family properties in the schedule, contending that after they attained majority, they have consented for sale of the same and hence, they are not necessary to be impleaded in this case. But, the court is of the considered opinion that, as per the direction of the Hon'ble Prl. District Court, Shimoga in RA.No. 419/2004, the plaintiffs ought to have impleaded all the joint family properties in this suit. Moreover, in order to avoid multiplicity of proceedings, it was necessary for the plaintiffs to implead all the joint family properties. But, the plaintiffs have not done so."
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17. Being further aggrieved by the same plaintiffs are before this Court.
18. Sri K.N.Dayalu, learned Counsel representing the appellants vehemently contended that at the first instance. the suit filed by the plaintiffs came to be decreed and after remand from the first Appellate Court, the learned trial Judge framed additional issues. But trial Court did not properly appreciate the material on record and wrongly dismissed the suit of the plaintiffs which has been mechanically upheld by the learned Judge in the first Appellate Court and thus sought for admission of the appeal on the aforesaid substantial questions of law.
19. Per contra Sri S.V.Prakash, learned counsel for the respondents supports the impugned judgments.
20. He also pointed out that suit filed by the plaintiffs itself was barred by limitation in view of the fact that the first appellant was born on 10.02.1970, attained majority on 10.02.1988 and alienation should have been challenged by him within 3 years from the date of attaining majority, i.e., on or before 10.02.1991 and admittedly suit is filed in the year 1992.
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21. He further contended that the learned trial judge and the learned judge in the first appellate court took into consideration the relevant aspects of the matter and have rightly dismissed the suit of the plaintiffs and sought for dismissal of the second appeal.
22. Having heard the parties in detail, this court perused the material on record meticulously.
23. On such perusal of the material on record, it is crystal clear that, the frame of the suit itself is improper.
24. Plaintiff No.1 was admittedly aged 20 years as per the cause title, whereas, as on the date of presenting the plaint he was aged 22 years given the date of birth of the plaintiff No.1 being 10.02.1970.
25. Further, it is the specific contention of the plaintiffs that defendant No.1 could not have alienated the property in favour of defendant No.2 binding the shares of plaintiffs as well.
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26. The said aspect of the matter was discussed at length by the learned trial Judge in the judgment at paragraph No.10 and effect of rights of plaintiffs in suit property.
27. Again in paragraph No.11 the admissions obtained in the cross-examination of the PW-1 has been taken into consideration while answering issue No.2 by the learned trial Judge and supplying cogent and convincing evidence on record held issue No.2 in the negative.
28. As is pointed out supra, learned Judge in the First Appellate Court not only concurred with the findings recorded by the learned Trial Judge, but also supplemented additional reasons in supporting the dismissal of the suit at paragraph Nos.17 and 18 as referred to supra.
29. The last substantial question of law viz., whether defendant No.1 had the right to act as a minor guardian for and on behalf of the plaintiffs in respect of ancestral property, also does not merit for consideration inasmuch as the properties that have been inherited by the plaintiffs even according to the plaint is through Will.
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30. Under such circumstances, this Court is of the considered opinion that none of the substantial questions of law would merit for further consideration.
31. Resultantly, following:
ORDER
(i) Appeal grounds are meritless and substantial questions of law does not merit for further consideration.
(ii) Hence, the appeal is dismissed.
(iii) No costs.
Sd/-
JUDGE
kcm
List No.: 2 Sl No.: 28