Shri. Omkar S/O Sambhaji Yadav vs Shri. Sambhaji S/O Madhu Yadav
2021 Latest Caselaw 6242 Kant

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          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

     DATED THIS THE 16TH DAY OF DECEMBER, 2021

                      BEFORE
          THE HON'BLE MRS.JUSTICE M.G.UMA

                M.F.A.NO.100407/2021
                         CW
                M.F.A.NO.100408/2021

IN M.F.A.NO.100407/2021
BETWEEN

1.   SHRI. OMKAR S/O SAMBHAJI YADAV
     AGE: 17 YEARS, OCC: EDUCATON &
     AGRICULTURE, MINOR GUARDIAN
     BY HIS MOTHER APPELLANT NO.2
     SOU.LATHA W/O SAMBHAJI YADAV
     AGE.43 YEARS, OCC.HOUSEHOLD WORK
     AND AGRICULTURE, R/O YAMAGARNI
     TALUK. NIPANI, DIST.BELAGAVI 591241.

2.   SOU.LATA W/O SAMBHAJI YADAV
     AGE. 43 YEARS, OCC. HOUSEHOLD WORK
     AND AGRICULTURE, R/O YAMAGARNI
     TALUK.NIPANI, DIST.BELAGAVI 591241.

3.   MISS. VIJAYADEVI D/O SAMBHAJI YADAV
     AGE.21 YEARS, OCC.EDUCATION &
     AGRICULTURE, R/O YAMAGARNI,
     TALUK.NIPANI, DIST.BELAGAVI 591241.

4.   MISS. TEJASWINI D/O SAMBHAJI YADAV
     AGE.19 YEARS, OCC.EDUCATION &
     AGRICULTURE, R/O YAMAGARNI
     TALUK.NIPANI, DIST.BELAGAVI 591241.
                                            ...APPELLANTS
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(BY MISS. SURABHI KULKARNI, ADVOCATE FOR
SRI.R.M.KULKARNI., ADVOCATE)

AND

1.    SHRI. SAMBHAJI S/O MADHU YADAV
      AGE.50 YEARS, OCC.AGRICULTURE
      R/O YAMAGARNI, TALUK.NIPANI
      DIST.BELAGAVI 591241.

2.    SHRI JYOTIRAM S/O BABURAO POWER
      AGE.37 YEARS, OCC.LIC AND RTO AGENT
      R/O YAMAGARNI, TALUK.NIPANI
      DIST.BELAGAVI 591241.
                                             ...RESPONDENTS

(BY SRI. VITTAL.S.TELI, ADVOCATE FOR R2; SERVICE OF NOTICE TO R1-SERVED).

THIS MFA FILED U/O.43 RULE 1(r) R/W SEC.151 OF THE CODE OF CIVIL PROCEDURE, PRAYING TO SET-ASIDE THE ORDER DATED 12.01.2021 PASSED BY SENIOR CIVIL JUDGE AND JMFC, NIPANI ON I.A.NO.1 IN O.S.NO.29/2020 IN THE INTEREST O JUSTICE AND EQUITY.

IN M.F.A. NO.100408/2021 BETWEEN

1. SHRI. OMKAR S/O SAMBHAJI YADAV AGE: 17 YEARS, OCC: EDUCATON & AGRICULTURE, MINOR GUARDIAN BY HIS MOTHER APPELLANT NO.2 SOU.LATHA W/O SAMBHAJI YADAV AGE.43 YEARS, OCC.HOUSEHOLD WORK AND AGRICULTURE, R/O YAMAGARNI TALUK. NIPANI, DIST.BELAGAVI 591241.

2. SOU.LATA W/O SAMBHAJI YADAV AGE. 43 YEARS, OCC. HOUSEHOLD WORK

AND AGRICULTURE, R/O YAMAGARNI TALUK.NIPANI, DIST.BELAGAVI 591241.

3. MISS. VIJAYADEVI D/O SAMBHAJI YADAV AGE.21 YEARS, OCC.EDUCATION & AGRICULTURE, R/O YAMAGARNI, TALUK.NIPANI, DIST.BELAGAVI 591241.

4. MISS. TEJASWINI D/O SAMBHAJI YADAV AGE.19 YEARS, OCC.EDUCATION & AGRICULTURE, R/O YAMAGARNI TALUK.NIPANI, DIST.BELAGAVI 591241.

...APPELLANTS (BY MISS. SURABHI KULKARNI, ADVOCATE FOR SRI.R.M.KULKARNI., ADVOCATE)

AND

1. SHRI. SAMBHAJI S/O MADHU YADAV AGE.50 YEARS, OCC.AGRICULTURE R/O YAMAGARNI, TALUK.NIPANI DIST.BELAGAVI 591241.

2. SHRI JYOTIRAM S/O BABURAO POWER AGE.37 YEARS, OCC.LIC AND RTO AGENT R/O YAMAGARNI, TALUK.NIPANI DIST.BELAGAVI 591241.

...RESPONDENTS

(BY SRI. VITTAL.S.TELI, ADVOCATE FOR R2; SERVICE OF NOTICE TO R1-SERVED).

THIS MFA FILED U/O.43 RULE 1(r) R/W SEC.151 OF THE CODE OF CIVIL PROCEDURE, PRAYING TO SET-ASIDE THE ORDER DATED 12.01.2021 PASSED BY SENIOR CIVIL JUDGE AND JMFC, NIPANI ON I.A.NO.2 IN O.S.NO.29/2020 IN THE INTEREST O JUSTICE AND EQUITY.

THESE APPEALS COMING ON FOR FURTHER HEARING ON THIS DAY, THE COURT DELIVERED THE FOLLOWING:

COMMON JUDGMENT

Appellant Nos.1 to 4-plaintiff Nos.1 to 4, are before

this Court, seeking to set-aside the impugned order dated

12.01.2021 passed on I.A.Nos.1 and 2 in O.S.No.29/2020,

on the file of learned Senior Civil Judge and JMFC., Nipani,

rejecting both the applications filed under Order 39 rule 1

and 2 read with Section 151 of Code of Civil Procedure (for

short 'CPC').

2. Brief facts of the case are that, the appellants

herein as plaintiffs filed the suit O.S.No.29/2020 against

defendant Nos.1 and 2, who are the respondents herein for

partition and separate possession of their 1/5th share over

the suit properties, by setting aside the sale deed executed

in favour of defendant No.2, as the same is not binding on

the plaintiffs. Defendant Nos.1 being the father of the

plaintiffs had sold item No.5 of the suit property in favour of

respondent No.2, under a registered sale deed dated

12.09.2019. Respondent No.1 is not contesting the suit

before the trial Court and it is only respondent No.2/the

purchaser of item No.5 of the suit property, is contesting

the suit.

3. During the pendency of the suit, plaintiffs filed

I.A.Nos.1 and 2 both under Order 39 rule 1 and 2 read with

Section 151 of CPC, seeking an order of temporary

injunction restraining the defendants from alienating the

suit schedule item No.5 and restraining them from ousting

the plaintiffs from the suit properties. Both the applications

were came to be rejected by the trial Court vide order

dated 12.01.2021. Impugning the same, the plaintiffs are

before this Court, seeking to set-aside the order passed by

the trial Court and to allow I.A.Nos.1 and 2 filed by the

plaintiffs against the defendants.

4. Heard learned counsel Miss.Surabhi Kulkarni.,

for learned counsel Sri.R.M.Kulkarni., for the appellants and

learned counsel Sri.Vitthal.S.Teli, for respondent No.2.

5. Learned counsel for the appellant contended that

defendant No.1/respondent No.1 is the father of the

plaintiffs and he sold the item No.5 of the suit property in

favour of respondent No.2 under the registered sale deed

dated 12.09.2019. The said sale was not for family

necessity. Therefore, plaintiffs are entitled to ignore the

said sale deed and seek partition of the schedule properties.

6. Learned counsel placed reliance on the decision

in Ganapati Shantaram Bhosale Vs Ramachandra

Subbarao Kulkarni1 to contend that in a suit for partition,

the parties need not have to seek either declaration or relief

for setting-aside the sale deed executed by defendant No.1.

7. Learned counsel further submits that the trial

Court proceeded to pass the impugned order by forming an

opinion that the sale in question was for family necessity.

There was absolutely no reason to form such an opinion in

the absence of any material for the same. During the

ILR 1985 (1) Kar 1115

pendency of the suit, the property in question is to be

protected. It is not in dispute that the properties are the

family properties and under such circumstance, the trial

Court should have allowed both the applications to preserve

the property as it is. Hence, she prays for allowing the

appeal and also to allow both I.A.Nos.1 and 2 filed in

O.S.No.20/2019 in the interest of justice.

8. Per contra, learned counsel for respondent

No.2/defendant No.2 opposing the submission made by the

appellants contended that respondent No.2 is a bona fide

purchaser of item No.5 of the suit property for value under

registered sale deed dated 12.09.2019. The suit is filed in

the year 2020. Defendant No.1 is the father of the plaintiffs

and plaintiffs are very well aware of the execution of the

registered sale deed in favour of the present respondent

No.2. In spite of that, no relief is claimed against

respondent No.2. The plaintiffs have not sought either the

declaration or relief of setting aside the registered sale

deed. Under such circumstances, the plaintiffs could not

have sought for injunction under Order 39 Rule 1 and 2 of

CPC under I.A.Nos.1 and 2. The trial court considered all

the facts and circumstances and rightly rejected the

applications. There is no merit in the appeals preferred by

the appellant. Hence, he prays for dismissal of the appeals

as devoid of merit.

9. Perused the material on record. The point that

would arise for my consideration is:

Whether the impugned order passed by the trial court on I.A.Nos.1 and 2 filed Under Order 39 Rule 1 and 2 of CPC in O.S.No.29/2020 call for interference by this court?

10. My answer to the above point is in the 'Negative'

for the following:

REASONS

11. The appellants being the plaintiffs in

O.S.No.29/2020 before the trial court seeking partition and

separate possession of their share over the schedule

properties. There are 9 items of the properties mentioned in

the plaint. It is stated that all those properties are the joint

family properties. It is stated that defendant No.1 father of

the plaintiffs sold item No.5 i.e., R.S.No.31/52 measuring

26.04 gunta in favour of defendant No.2 under the

registered sale deed dated 12.09.2019. Strangely, no relief

is claimed against defendant No.2, even though he is

arrayed as one of the defendant. The suit is one for bare

partition and separate possession of the suit property by

setting aside the sale deed executed in favour of defendant

No.2, as the same is not binding on the plaintiffs.

Therefore, it is clear that the plaintiffs were very well aware

of the registered sale deed executed by defendant No.1 in

favour of defendant No.2 on 12.09.2019. The plaintiffs have

not chosen to seek declaration that the said sale deed is not

binding on them. However, they have sought for temporary

injunction against the defendants by filing separate two

applications under Order 39 Rule 1 and 2 of CPC, one for

restraining the defendants from alienating the suit property

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and other one for restraining the defendants from ousting

the plaintiffs from suit schedule properties. Both the

applications were came to be rejected by the trial court.

12. Now the question arises as to whether the

plaintiffs can maintain a simple suit for partition without

seeking declaration regarding the registered sale deed

which was admittedly executed by defendant No.1 in favour

of defendant No.2.

13. Learned counsel for the appellants placed

reliance on the decision of this court in the case of

Ganapati Santaram Bhosale (supra) wherein the

Division Bench of this Court considered a similar situation

and held in para 19 as under:

"It is now well settled that in a suit for partition by Hindu coparcener it is not necessary for him to seek the setting aside of the sale. It is sufficient if he asks for his share in the joint family properties and he be put in possession thereof and for a declaration that he is not

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bound by any alienations or interest of others created in such properties which fall to his share."

(emphasis supplied)

14. The Division Bench was right in holding that,

when the plaintiffs are not parties to the sale deed, there is

no legal requirement to seek cancellation of the sale deed

or setting aside the sale deed. But when the cloud is cost

on the title and right of the plaintiffs over the property, a

declaration under Section 34 of the Specific Relief Act is a

must. The court in the above passage specifically stated

that it is sufficient if the plaintiffs asked for share in the

joint family properties along with the declaration that the

sale deed is not binding on them. But, admittedly, in the

present case, the plaintiffs have not sought for any such

declaration that the sale deed executed by defendant No.1

in favour of defendant No.2 is not binding on them.

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15. It is relevant to refer to the decision of the

Hon'ble Apex Court in the case of IAS Sardool Singh vs

Randhir Singh and Others2 wherein the Hon'ble Apex

Court while considering the court fees which is required to

be paid in the suit for declaratory relief with consequential

relief in respect of an agricultural land, categorically held

that where the executant of a deed wants it to be annulled,

he has to seek cancellation of the deed. It is also held that,

if a non-executant seeks annulment of the deed, he has to

seek declaration that deed is invalid, or nonest or illegal or

that it is not binding on him.

16. It is also pertinent to refer to the decision of the

Coordinate Bench of this court in the case of Mr.Vikram

Ravi Menezes vs Mr.Victor Goveas3, wherein the

Coordinate Bench again considered the question regarding

payment of court fees in a suit for declaration of title and

for possession and also consequential relief of injunction

(2010) 12 SCC 112

ILR 2005 Karnataka 3354

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and held that, the declaration that a particular sale deed is

not binding on the plaintiff would become necessary only

when a person who has interest in the property, but is not a

signatory to the document. Such a declaration would

necessary for the plaintiff to ignore such a document as the

same is not binding on him even though the document is

registered, when he is not a party to the said instrument.

The Coordinate Bench of this court also held that, if a

person against whom a written instrument is void or

voidable and who has reasonable apprehension that such

instrument, if left outstanding may cause him serious

injury, may sue to have it adjudged void or voidable. Any

person against whom the instrument is void/voidable,

reasonably apprehends that such instrument if left

outstanding, it may cause him serious injury, he may bring

a suit to get the document annulled. Thus the position of

law on the subject is very well settled.

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17. If the contention taken by the appellants that, in

a suit for partition the plaintiffs are bound to ignore the sale

deed that is executed by one of the family member i.e.,

defendant No.1 herein is to be considered in the light of the

settled position of law. The question arises as to what

happens to the registered sale deed that is already

executed in favour of respondent No.2 herein if the

plaintiffs are permitted to ignore the same. If the court

proceeds to decree the suit for partition and separate

possession ignoring the sale deed in question, whether the

decree of the court for partition will prevail or whether the

registered sale deed that was in force much prior to the

granting of decree will prevail, will be a question to be

answered. Moreover, the plaintiffs have arrayed defendant

No.2 as one of the party to the suit knowing fully well that

the registered sale deed is executed in his favour, but no

relief is sought against him. Thereby respondent No.2 is

only a formal party against whom no relief is claimed, but

strangely, I.A.Nos.1 and 2 were filed against him seeking

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temporary injunction restraining him not to alienate the

property in question and not to oust the plaintiffs from the

suit schedule properties.

18. Now again the question arises as to whether

when no relief is claimed in the suit, can the temporary

injunction could be granted against him. The settled

proposition is that, even if the plaintiffs contend that the

registered sale deed executed by defendant No.1 in favour

of defendant No.2 is not for the family necessity and that

they are bound to ignore the said dale deed, they have to

seek a declaration to that effect. Of course, plaintiffs who

are not signatories to the sale deed in question are not

required to seek a decree for setting aside the sale deed,

but seeking declaration in respect of the sale deed is very

much necessary.

19. The next question arises as to whether without

seeking any relief against defendant No.2 in respect of the

registered sale deed, can the plaintiffs maintain I.A.Nos.1

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and 2 under Order 39 Rule 1 and 2 of CPC. The answer

would be in the negative for the simple reason that no relief

is sought against respondent No.2 and no declaration is

sought in respect of the registered sale deed that was

executed by defendant No.1. Therefore, I am of the opinion

that I.A.Nos.1 and 2 filed by the plaintiffs before the trial

court are not maintainable.

20. In view of the above, I do not find any merit in

the contention taken by the appellants and the appeals

deserve to be dismissed. Hence, I answer the above point

in the "negative" and proceed to pass the following:

ORDER

Both the appeals are dismissed.

In view of the disposal of the above appeals, the

pending applications if any, do not survive for

consideration.

SD/-

JUDGE AM/MBS