Sohil S/O. Subas Patil vs Subhas S/O. Jinagouda Patil
2022 Latest Caselaw 2055 Kant

                               1


             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

         DATED THIS THE 9TH DAY OF FEBRUARY, 2022

                          BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

             R.S.A.NO.5180 OF 2012(PAR/POS)

BETWEEN:

1. KUMAR SOHIL
S/O SUBHAS PATIL
AGE: 7 YEARS, OCC: NIL

2. POORNIMA W/O SUBHAS PATIL
AGE: 28 YEARS, OCC: HOUSE HOLD WORK,

BOTH R/O TERDAL,
TQ: JAMAKHANDI, DIST: BAGALKOT-587102
(SINCE APPELLANT NO.1 IS
MINOR REP BY HIS MOTHER
APPELLANT NO.2).
                                              ...APPELLANTS
(BY SRI.N.L.BATAKURKI, ADV.)

AND:

1. SUBHAS S/O JINAGOUDA PATIL
AGE: 24 YEARS, OCC: AGRICULTURE,
R/O TERDAL, TQ: JAMAKHANDI
DIST: BAGALKOT-587102

2. THE BANK MANAGER
BASAVESHWAR BANK BR
TERDAL, TQ: JAMAKHANDI,
DIST: BAGALKOT-587102.
                                 2



3. THE SALE OFFICER SHRI
BASAVESHWAR SAHAKARI BANK
NIYAMIT, BAGALKOT TQ & DIST
BAGALKOT-587102.
                                                 ...RESPONDENTS
(BY SRI.ANAND R.KOLLI, ADV. FOR R2 & R3,
R1 SERVED)

     THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL
PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
PASSED IN R.A.NO. 79/2007 DATED 29.03.2011 PASSED BY FAST
TRACK COURT, JAMAKHANDI, ALSO SET ASIDE THE JUDGMENT
AND DECREE PASSED IN O.S.NO.33/2006 DATED 04.10.2007 ON
THE FILE OF THE PRIL CIVIL JUDGE (JR DIV) BANAHATTI AND
DECREED THE SUIT IN THE INTEREST OF JUSTICE AND EQUITY.


    THIS RSA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

The captioned second appeal is filed by unsuccessful

appellants-plaintiffs wherein both the Courts have dismissed

the suit filed for partition and separate possession and for

consequential relief of injunction.

2. For the sake of convenience, the parties are

referred to as per their rank before the trial Court.

3. The facts leading to the case are as under:

Plaintiff No.1 is the son born in the wedlock of plaintiff

No.2 and defendant No.1. The suit property is a residential

house bearing TMC No.2331 of Teradal. The plaintiffs claim

that the defendant No.1 is the owner of the suit schedule

property. It is further stated that defendant No.1 had

purchased the open site and has constructed a residential

house in the suit property. The plaintiff No.2 who claims to

be the wife of defendant No.1 has taken a specific contention

that at the time of purchasing the suit schedule property she

had also contributed towards the sale consideration. It is

further contended in the plaint that for the last one year, there

was no cordial relationship between plaintiff No.2 and

defendant No.1 and that the defendant No.1 started

threatening the plaintiffs that he will throw them out from the

residential house. The plaintiffs have also alleged that

defendant No.1 is addicted to vices.

4. The defendant No.2 who is the manager of

defendant No.2-Society filed the written statement and stoutly

denied the entire averments made in the plaint. The

defendant No.2-Society specifically contended that defendant

No.1 for family necessity has obtained loan and therefore,

defendant No.2-Society has initiated recovery proceedings

under the provisions of the Securitisation and Reconstruction

of Financial Assets and Enforcement of Securities InterestAct

(for short "SARFAESI Act"). Therefore, defendant No.2

contended that plaintiffs have not issued prior notice of sixty

days before filing the present suit. It was also specifically

averred in the written statement that plaintiff No.2 is the

surety to the loan transaction and hence, a specific contention

was taken that suit filed plaintiffs against the Co-Operative

society is not maintainable without prior notice. It was also

specifically contended that plaintiff No.2 and defendant no.1 in

collusion have filed a frivolous suit.

5. The trial Court having assessed the oral and

documentary evidence answered Issue No.2 in the negative by

recording a categorical finding that plaintiff No.2 has failed to

prove that she has contributed towards sale consideration

while purchasing the site. While examining issue No.3, the

trial Court has categorically recorded a finding that plaintiffs

have failed to prove that defendant No.1 is attempting to

dispossess them illegally from the suit schedule property.

While examining Issue No.5 though the Court held that the

suit for partition is maintainable in respect of the property is

the subject-matter of SARFAESI Act, however, the trial Court

was of the view that defendant No.2 being the secured

creditor is equally entitled to recover the secured debt in

terms of the provisions of the SARFAESI Act. While examining

Issue No.6, the trial Court has recorded a categorical finding

that since plaintiffs have filed the suit without issuing prior

notice under the Co-Operative Societies Act, the present suit

against defendant No.2 is not at all maintainable. On these

set of reasoning, the suit came to be dismissed.

6. The plaintiffs feeling aggrieved by the judgment

and decree of the trial Court preferred an appeal before the

appellate Court in R.A.No.79/2007. The appellate court

having independently assessed the oral and documentary

evidence has not only negatived the contention raised by the

plaintiffs but has proceeded to record a categorical finding that

the present suit filed by the plaintiffs is a collusive suit and the

same is filed at the instance of defendant No.1. Having

examined the judgment rendered by the Division Bench of this

Court reported in 2006(1) KCCR 136 held that though the

partition suit is not barred under Section 34 of the SARFAESI

Act, however, the Society is equally entitled to proceed under

the provisions of the SARFAESI Act against the mortgaged

property. The appellate court also on re-appreciation of the

oral and documentary evidence found that plaintiff No.2 is the

surety to the loan transaction. The defendant No.2-Society

has proceeded against the secured debt by invoking the

provisions of the SARFAESI Act and notice was also issued

under Section 13(2) of SARFAESI Act. The appellate Court

found that the present suit is a collusive suit and the same is

filed at the instigation of defendant No.1 only to defeat the

claim of the society. The appellate Court also found that

plaintiffs and defendant No.1 are residing in the same house

and therefore, the present suit filed on the premise that

defendant No.1 is addicted to vices is an afterthought and the

present suit is filed only to stall the recovery proceedings

initiated by defendant No.2-Society. On these set of

reasonings, the appellate Court has concurred with the

findings of the trial Court.

7. It is against these concurrent judgments and

decrees of the Courts below, the plaintiffs are before this

Court.

8. Heard the learned counsel for the appellants-

plaintiffs and perused the judgments under challenge.

9. The plaintiffs are seeking partition in the suit

schedule property by alleging that defendant No.1 who is the

father of plaintiff No.1 and husband of plaintiff No.2 is

addicted to vices. Plaintiff No.2 claims that the suit schedule

property which is a open site was jointly purchased by plaintiff

No.2 and defendant No.1. Having taken such a contention, no

documents are produced. In the absence of clinching

evidence, both the Courts have concurrently held that the suit

schedule property is the self acquired property of defendant

No.1.

10. The next question that needs to be examined is

whether the present suit is maintainable and the plaintiffs can

enforce partition in the suit schedule property in the

background of recovery proceedings initiated by defendant

No.2-Society. My answer is "No". Though, there is no bar to

maintain the partition suit in terms of Section 34 of SARFAESI

Act., however, defendant No.2-Society being a secured

creditor has an unfettered right to proceed against the

mortgaged property to recover the debt. The material on

record clearly indicates that defendant No.2 has issued notice

under Section 13(2) of SARFAESI Act. Both the Courts have

recorded a concurrent finding that plaintiff No.2 has failed to

prove that she has also contributed to the purchase of suit

schedule property. Both the Courts have held that the present

suit is frivolous suit and the same is filed in collusion with

defendant No.1. If plaintiff No.2 has signed as a surety and

was aware of the proceedings initiated by defendant No.2-

Society by invoking the provisions of the SARFAESI Act., the

present suit is filed at the instigation of defendant No.1.

Therefore, both the Courts were justified in holding that

plaintiffs are not entitled for share in the suit schedule

property as it is the self acquired property of defendant No.1.

The plaintiffs have not issued notice as required under the

provisions of the Karnataka Co-Operative Societies Act before

filing the suit against the Co-Operative Society. The relevant

issue is answered against the plaintiff. Therefore, even on this

count, the suit is not maintainable as the plaintiffs have not

issued notice prior to filing of the suit. On perusal of the

materials on record, this Court would find that no substantial

question of law arises in the present case on hand.

Accordingly, the appeal is dismissed.

Sd/-

JUDGE

*alb/-