Subhash S/O Dharamarao vs Dharamrao @ Dharamaraya S/O ...
2021 Latest Caselaw 6910 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH
     DATED THIS THE 21ST DAY OF DECEMBER, 2021
                         BEFORE
         THE HON'BLE MR.JUSTICE M.G.S.KAMAL
                  RFA NO.200032/2014
BETWEEN:
SUBHASH S/O DHARAMARAO,
AGE: 28 YEARS, OCC: PRIVATE SERVICE,
R/O: H.NO.2-102, ASHOK NAGAR,
OLD SHAHABAD-585 229,
TQ: CHITTAPUR, DIST: GULBARGA.
                                           ... APPELLANT
(BY SRI.A.M.BIRADAR, ADVOCATE)
AND:
1.     DHARAMRAO @ DHARAMARAYA
       S/O: BASAVANTHARAYA,
       AGE: 58 YEARS, OCC: AGRICULTURE,
       R/O: H.NO.2-102, ASHOK NAGAR,
       OLD SHAHABAD-585 229,
       TQ: CHITTAPUR, DIST: GULBARGA.
2.     GANGADHAR S/O SHANKAREPPA KUMBAR,
       AGE: 43 YEARS, OCC: AGRICULTURE,
       R/O: ALSTOM COLONY, 10-B CROSS,
       13/1, JEQ SHAHABAD-585 229,
       TQ: CHITTAPUR, DIST: GULBARGA.
                                        ... RESPONDENTS
(BY SRI. A.M.NAGARAL, ADVOCATE FOR R1;
BY SRI. AMEET KUMAR DESHPANDE, ADVOCATE FOR R2)
      THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER
41 RULE 1 OF CIVIL PROCEDURE CODE, 1908, PRAYING TO CALL
FOR THE RECORDS AND TO SET ASIDE THE JUDGMENT AND
DECREE DATED 16.04.2014 PASSED BY THE SENIOR CIVIL
JUDGE, CHITTAPUR, IN O.S.NO.156/2011 (NEW) NO.44/2011
(OLD) BY ALLOWING THIS APPEAL WITH COSTS.

      THIS APPEAL BEING HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
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                            JUDGMENT

This appeal is filed by the plaintiff-appellant under

Section 96 read with Order 41 Rule 1 of Code of Civil

Procedure (henceforth referred as 'CPC') against the

judgment and decree dated 16.04.2014 passed in

O.S.No.156/2011 on the file of Senior Civil Judge, Chiittapur

filed by the plaintiff for the relief of partition and separate

possession.

02. The parties are referred as per their ranks in the

suit.

03. Subject matter of the suit is the land bearing

Sy.No.345/U measuring 04 acres 36 guntas situated at

Shahabad Taluka Chittapur and a house bearing No.2-102

situated at Ashok Nagar Shahabad (hereinafter referred as

the 'suit schedule properties').

04. It is the case of the plaintiff that the suit

schedule properties are the joint family properties belonging

to himself and his father - the defendant No.1. That

defendant No.2 is no-way concerned with the plaintiff and

defendant No.1. That the defendant No.1 inherited the suit

properties from his ancestors. After death of the grandfather

of the plaintiff, the properties were mutated in the name of

the defendant No.1. As such, the plaintiff has share in the

properties. That there has been no partition between him

and defendant No.1 in respect of the suit properties. That

the plaintiff was working in a private company at Gujarat for

07-08 years. That taking undue advantage of his absence,

defendant No.1 had effected mutation of his name in respect

of the suit schedule properties and in collusion with

defendant No.2 had created a false deed of sale in respect

of the suit properties. That when the plaintiff came to

Shahabad during the month of March 2011, he learnt about

the said transaction. Since, the suit properties are ancestral

joint family properties of the plaintiff and the defendant

No.1, the defendant No.1 could not have sold the properties

by executing deed of sale dated 10.07.2007 in favour of

defendant No.2. The said deed is not binding on the plaintiff.

The Defendant No.2 is not a bonafide purchaser. That the

plaintiff requested defendant No.1 to partition the properties

and to give his share on 10.04.2011, which was refused,

constraining the plaintiff to file a suit. Therefore, the plaintiff

sought for a decree of declaration, that the sale deed

executed by defendant No.1 in favour of defendant No.2 in

respect of suit land be declared as null and void and not

binding on the plaintiff.

05. On service of summons the defendant Nos.1 and

2 appeared and filed their written statements. Defendant

No.1 has supported the case of the plaintiff and has prayed

that suit to be decreed as prayed for. The defendant No.1

has also contended that the defendant No.2 had created a

bogus and false sale deed and that he has not sold the land

and he has not received any consideration amount from

defendant No.2 and never delivered the possession of the

suit properties to the defendant No.2. Hence, sought for

decreeing the suit as prayed by the plaintiff.

06. The defendant No.2 filed separate written

statement contending that suit properties was previously

owned by one Shivasharanamma wife of Mallannarao Patil

resident of Chitrasala of Chincholi Taluka. That said

Shivasharanamma had filed a suit against her father

Basavantharaya in O.S.No.41/1966 before the Munsiff Court

at Chittapur, which was decreed. Thereafter, it was

confirmed by the High Court of Karnataka. That there was

an agreement on 02.06.1974 wherein Sy.No.345 totally

measuring 24 acres 20 guntas had been given to the

grandfather of the plaintiff i.e., Basavantharaya s/o

Revappa. Thereafter, Shivasharanamma has executed a sale

deed in favour of her father Basavantrao on 24.11.1975

under document No.1440/1975-76 in the office of Sub-

Registrar Chiittapur. On the basis of sale deed, the

grandfather of the plaintiff got his name mutated in the

record of rights in respect of land in Sy.No.345. That during

the life time of grandfather of the plaintiff, he partitioned

the suit properties along with other properties amongst his

sons. Thus, the suit properties are not ancestral properties

of the plaintiff and defendant No.1 as claimed. As such

plaintiff has no right to seek partition and separate

possession of the suit properties. That the plaintiff and

defendant No.1 colluding with each other have filed this suit

against defendant No.2 only to harass defendant No.2.

Hence, sought for dismissal of the suit.

07. The Trial Court on the basis of pleadings framed following issues.

1. Whether plaintiff proves that the suit schedule properties are ancestral Hindu un-divided joint family properties himself and the defendant No.1.?

2. Whether the plaintiff further proves that himself and defendant No.1 are in joint possession and enjoyment over the suit property as on the date of filing oft the suit.?

3. Whether plaintiff proves that sale deed executed by defendant No.1 in favour of defendant No.2 as per document No.1564/2007-08 dated 10.07.2007 is not biding on him?

4. Whether the defendant No.2 proves that he is the bonafide purchaser of the land bearing Sy.No.345/U an extent of 04 acres 26 guntas.?

5. Whether defendant No.2 further proves that Sy.No.345, measuring 24 acres 20 guntas is not the ancestral property of plaintiff and defendant No.1.?

6. Whether the plaintiff is entitled the decree as prayed for.?

7. What order or decree?

08. The plaintiff examined himself as PW.1 and

exhibited twelve documents marked as Exs.P.1 to Ex.P.12.

On the other hand the defendant No.2 examined himself as

DW.1 and exhibited four documents marked Exs.D.1 to D.4.

The defendant No.1 examined himself as DW.4. They have

also examined four witnesses as DWs.2, 3, 5 and 6. On

appreciation of evidence the Trial Court answered Issue

Nos.1, 2, 3 and 6 in the Negative and issue Nos.4 and 5 in

the affirmative and consequently, dismissed the suit.

09. Being aggrieved by the same, the plaintiff is

before this Court by way of this appeal.

10. The learned counsel for the appellant reiterating

the grounds urged in the appeal memo submitted that:-

a. That the Trial Court erred in concluding that the

suit properties are not the ancestral and joint

family properties.

b. That the Trial Court did not take into

consideration the admission of defendant No.1

with regard to suit land being ancestral

properties and name of the father being found in

the record of rights.

c. That Basavantharaya had died leaving behind

his son the defendant No.1 who succeeded to

the said land and thereafter the plaintiff and

defendant No.1 lived in joint. Therefore the

plaintiff is entitled for share in the joint family

properties.

d. The properties continued to be the joint family

properties and defendant No.1 had no right to

sell the suit schedule properties in favour of

defendant No.2. That the plaintiff and defendant

No.1 being coparceners, the plaintiff was

entitled for equal half share in the properties.

e. He placed reliance on Ex.P.10 and Ex.D.1 being

the sale deed ignoring the requirement of proof

of the same was erroneous as no evidence was

led by the defendant No.2 to establish that he

was the bonafide purchaser and the defendant

No.1 has sold the same for legal necessity.

f. That the finding of the Trial Court that the

defendant No.2 has proved that the defendant

No.1 has sold the properties for legal necessity.

g. That defendant No.1 had not sold the suit

properties to defendant No.2 and no

consideration was passed on by defendant No.2

to the defendant No.1 and no possession was

delivered in favour of the defendant No.2.

h. That the despite the admission by the defendant

No.1 in his written statement regarding the

properties being joint family properties, the Trial

Court erred in holding otherwise that since there

was no partition of family consisting of plaintiff

and defendant No.1.

11. On the other hand, the learned counsel for the

defendant No.1 supporting the case of the plaintiff

submitted; that the properties being joint family properties,

the Trial Court ought not to have dismissed the suit and

thereby adopted the arguments of the appellant - plaintiff.

He relied upon the judgment of the Coordinate Bench of this

Court in the case of Hanamant vs. Adiveppa disposed off

on 12.02.2014 in RFA.No.221/2005 and also the

judgment of the Apex Court in the case of Rohit Chauhan

vs. Surinder Singh and others reported in (2013) 9 SCC

419.

12. The learned counsel appearing for defendant

No.2 justifying the judgment and decree passed by the Trial

Court submitted that, fact that the suit schedule properties

admittedly belonged to Basavantharaya and he having

purchased the same under a sale deed 24.11.1975 would

establish that the properties were the self-acquired

properties of the said Basavantharaya and upon his demise,

the defendant No.1 being class-I heir has succeeded to the

same having absolute and unhindered right over the suit

schedule properties to dispose off the same absolutely.

Thus, the defendant No.1 in exercise of his right over the

properties has conveyed the same in favour of defendant

No.2. He further submits that the plaintiff has no right, title

and interest in the suit properties, as the same is not the

ancestral properties of the plaintiff. Hence, he submits that

there is no error or illegality committed by the Trial Court in

dismissing the suit.

13. Heard the learned counsel for the parties and

perused the records.

14. The only question that arise for consideration is;

"Whether the Trial Court was justified in dismissing the suit on the premise that the suit properties are not the ancestral properties as claimed by the plaintiff and as such the plaintiff had no share in the suit properties?

15. Though it is the specific case of the plaintiff that

the suit properties are ancestral properties belonging to the

joint family consisting of himself and the defendant No.1, no

material evidence of any nature whatsoever is produced by

the plaintiff to establish and justify his contention. It is

settled position of law that there can be a presumption of a

family being a 'joint family', but there cannot be

presumption with regard to a 'joint family property'. When it

is case of the plaintiff that suit properties were ancestral

properties and he along with defendant No.1 are the

members/coparceners of the joint family, it was incumbent

upon the plaintiff to have first discharged the burden of

proving that the said properties were a joint family

properties, consisting himself and the defendant No.1. It is

equally settled law that to be an ancestral properties at the

hands of the plaintiff claiming the land acquired right by

birth the plaintiff must establish that the property was held

in joint by three generation above him. In other words the

plaintiff must establish that the suit properties belonged to

his father, father's father and father's father's father, it is

only then the plaintiff can justify his claim of being a

coparcener having acquired the share by birth therein

otherwise not.

16. The plaintiff who has been examined as PW.1

except producing RTC extracts from the year 1978 till 2011

as per Exs.P.1 to Ex.P.9, has not produced any documentary

evidence to substantiate his case of the suit properties being

ancestral properties. In the cross-examination he has

admitted that his grandfather Basavantraya had two wives,

but however has denied all other suggestions with regard to

the circumstances of his grandfather Basavanthraya

purchasing the suit schedule properties from his daughter

namely Shivasharanamma who was born through first wife

of Basavantharaya. He has however admitted that there are

no revenue records to establish that the suit properties were

the ancestral properties.

17. The defendant No.2 in furtherance to his specific

case of the suit schedule properties not being the ancestral

properties and the same having been purchased by

Basavantharaya, the grandfather of the plaintiff and the

father of the defendant No.1 and circumstances leading up

to purchase of the said properties, has produced four

documents marked as Exs.D.1 to Ex.D.4, which are as

under:-

a. Ex.D.1 is a deed of sale dated 24.11.1975

executed by Shivasharanamma wife of

Mallannarao Patil in favour of Basavantharaya

s/o Revappa conveying land in Sy.No.345

measuring 24 acres 20 guntas. The said

Shivasharanamma is stated to be the daughter

of said Basavantharaya from his first wife

Smt.Siddamma.

b. Ex.D.2 is the written statement filed by one

Ramrao, Channamma, Mallubai, Indrabai,

Basamma, Chandrashekhar, Jagadevi and

Mallikarjun in a suit filed by Basavantharaya in

O.S.No.252/1987 for the relief of specific

performance of contract of sale. From the

averments made in Para No.8 of the said written

statement it appears that Shivasharanamma the

daughter of Basavantharaya, who died on

16.03.1982 leaving behind her husband Malhar

Rao and the aforesaid persons as her legal

representatives to succeed to her property. It

appears that Basavantharaya had filed the

above suit seeking specific performance of an

agreement of sale purportedly entered into

between Basavantharaya and his daughter

Smt.Shivasharanamma. It is in this background

the averments made in the other paragraphs of

the said written statement is to be looked at.

c. In Para No.4 of the written statement - Ex.D.2 it

is pleaded that Smt.Siddamma the first wife of

Basavantharaya, the plaintiff in the said suit,

had three lands Sy.No.75, 345 and 230, all

situated at Shahabad. That after her death, her

daughter Smt.Shivasharamma inherited all the

properties. That Basavantharaya was cultivating

the said three lands on behalf of his daughter

Smt.Shivasharanamma. That in the year 1964

difference arose between Smt.

Shivasharanamma and Basavantharaya as he

had denied to pay Rs.3,000/- demanded by her

and to give account of the income derived from

the said lands. Smt.Shivasharanamma had

therefore, decided to take legal steps against

her father Basavantharaya. When she obtained

record of rights and had found that only land

bearing Sy.No.230 was standing in her name,

while other two lands Sy.No.345 and 75 had

been mutated in the name of Basavantharaya on

the basis of a forged Will. On questioning about

this, Basavantharaya had denied the ownership

of Smt. Shivasharamma and refused to give the

share of the suit properties to her. Therefore,

she has filed O.S.No.41/1966. On 30.09.1987

the suit was decreed, declaring that

Smt.Shivasharanamma to be the co-owner of

the said three lands and she was entitled to get

possession and have name entered in revenue

records with regard to lands in Sy.No.75 and

345 of Shahabad. Aggrieved by the said

judgment and decree Basavantharaya had filed

appeal before Civil Judge Kalaburagi in

R.A.No.241 of 1967 which was also dismissed on

17.06.1970. Aggrieved by the same

Basavantharaya had filed RSA before the High

Court in RSA.No.828/1970 which was also

dismissed by the High Court on 07.06.1973.

Since, despite the above judgment and decrees,

Basavantharaya did not hand-over the

possession, Smt. Shivasharanamma had filed

execution petition in E.P.No.3/1974 in which

warrant of delivery of possession was issued and

the Court Bailiff had delivered the possession of

suit land to Smt.Shivasharanamma on

19.04.1974.

d. As already noted above from the contents of

Para No.8 of the said written statement - Ex.D.2

it appears that the Basavantharaya had filed

said suit in O.S.No.252/1987 against the

children of Shivasharanamma seeking specific

performance of the agreement purportedly

entered in his favour by Smt.

Shivasharanamma.

e. Ex.D.3 is the judgment of this Court in

RSA.No.828/1970 dated 07.06.1973 which

reveals that Basavantharaya who had lost the

suit in O.S.No.41/1966 and also regular appeal

in R.A.No.241/1967 (which are referred at Para

No.4 of the written statement Ex.D.2), had filed

the said second appeal. The said second appeal

was dismissed confirming the right, title and

interest of Smt.Shivasharanamma.

f. Ex.D.4 is the judgment and decree passed in

R.A.241/1967 which is filed by Basavantharaya

against Smt.Shivasharanamma aggrieved by the

judgment and decree passed in O.S.No.41/1966.

18. From the above said evidence on record what

emanates is that the suit properties were the self-acquired

properties of Basavantharaya s/o Revappa, who is none

other than the father of defendant No.1 and grandfather of

plaintiff. In the light of these undisputed documentary

evidence the defendant No.2 has established that the suit

property is not the ancestral joint family properties as

claimed by the plaintiff.

19. On the contrary, the plaintiff who has produced

Ex.P.1, 2, 3, 4, 5, 6, 7, 8 and 9 which are the copies of RTC

extracts for the year 1978-79, though referred to the name

of Defendant No.1 in respect of 04 acres 29 guntas of land

the said documents in light of Exs.D.1, 2 and 3 could not

establish the properties being the joint family ancestral

properties. While this being the factual aspect of the matter,

the claim of the plaintiff that the properties being ancestral

properties, he having vested share, right and interest

therein cannot be accepted.

20. When once it is established that the properties

are not ancestral properties and that it was absolute

properties of Basavantharaya on his demise, the defendant

No.1 being his son and being Class-I heir acquired right,

title and interest in the suit properties as absolute owner

thereof. That the plaintiff cannot claim any vested right. The

defendant No.1 therefore was entitled under law to deal with

the properties including dispose/alienate the same to person

of his choice without any hindrance.

21. Though the Trial Court having held the Issue

Nos.1, 2 and 3 with regard to whether the properties are

ancestral Hindu Undivided Joint Family Properties and were

in joint possession of the plaintiff and defendant and the

sale deed executed by defendant No.1 in favour of

defendant No.2 was binding on the plaintiff in the Negative.

However, went on to examine an issue regarding the

defendant No.2 being bonafide purchaser or not. This is in

the considered opinion of this Court that was un-warranted

and unnecessary, as the properties being the absolute

properties of Basavantharaya and upon his death having

succeeded by the defendant No.1 in terms of Section 8 of

the Hindu Succession Act, 1956 and the plaintiff had no

right in the same and the defendant No.1 had every right to

deal and dispose off the same. Therefore, the deed of sale

dated 10.07.2007 executed by the defendant No.1 in favour

of defendant No.2 is valid and subsisting and the same is in

accordance with law.

22. In the light of the above analysis and in view of

the above material evidence available on record, the

judgment and decree passed by the Trial Court in

O.S.No.156/2011 dismissing the suit filed by the plaintiff do

not require any interference. Hence, the following;

ORDER

I. RFA.No.200032/2014 is dismissed.

II. The Judgment and decree dated 16.04.2014 passed in

O.S.No.156/2011 by the Senior Civil Judge, Chiittapur,

dismissing the suit of the plaintiff, is confirmed.

III. Parties to bear their own costs.

Sd/-

JUDGE

KJJ