Sakashata D/O. Shankar Mudalagi vs Ningappa Lakkappa Koni @ Mulimani
2022 Latest Caselaw 2056 Kant

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

     DATED THIS THE 09TH DAY OF FEBRUARY, 2022

                       BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

              R.S.A.NO.5179/2012 (PAR)

BETWEEN

1.   KUM.SAKASHATA
     D/O. SHANKAR MUDALAGI
     AGED ABOUT 08 YEARS.

2.   KUM. AKSHTA
     D/O SHANKAR MUDALAGI,
     AGED ABOUT 06 YEARS.

     BOTH APPELLANT NOS.1 & 2
     ARE MINORS REPRESENTED BY
     THEIR MINOR GUARDIAN,
     SHANKAR YAMANAPPA MUDALAGI,
     R/O GUNJATTI, TQ: GOKAK,
     DIST: BELGAUM-591307.

3.   SMT.MAYAWWA
     W/O NINGAPPA MUDALAGI,
     AGED ABOUT 26 YEARS,
     OCC: AGRICULTURE,
     R/O GUNJATTI, TQ: GOKAK,
     DIST: BELGAUM 591 307.

4.   SMT.SHANTAWWA
     W/O. MALLAPPA BHARAMANNAVAR,
     AGED ABOUT 24 YEARS,
     OCC: AGRICULTURE,
     R/O DURDUNDI, TQ: GOKAK,
     DIST: BELGAUM-591 307.

5.   LAXMI SANJU PIDAI,
     AGE ABOUT 24 YEARS,
     OCC: AGRICULTURE,
                            2




      R/O. KHADAKBHAVI, TQ: GOKAK,
      DIST: BELGAUM-591 307.

6.    GOUDAPPA
      S/O NINGAPPA KONI @ MULINANI ,
      AGED ABOUT 23 YEARS, OCC: AGRICULTURE,

7.    SHRI KAMAPPA
      S/O NINGAPPA KONI @ MULIMANI,
      AGED ABOUT 21 YEARS, OCC: AGRICULTURE,
      R/O GUNJATTI, TQ: GOKAK,
      DIST: BELGAUM.

8.    SANTOSH
      S/O NINGAPPA KONI @ MULIMANI
      AGED ABOUT : 16 YEARS,
      OCC: AGRICULTURE.

9.    SMT.HALAVVA BHIMAPPA MUDALAGI
      AGED ABOUT : 27 YEARS.

10.   VITHAL
      NINGAPPA KONI @ MULIMANI
      AGED ABOUT 14 YEARS.

11.   LAKKAPPA
      NINGAPPA KONI @ MULIMANI
      AGED ABOUT : 14 YEARS.

      APPELLANT NOS.8, 10 & 11 MINORS
      REPRESENTED BY THEIR MOTHER,
      APPELLANT NO.12.

12.   SMT.NIMBEWWA
      NINGAPPA KONI @ MULIMANI
      AGED ABOUT : 48 YEARS,
      OCC: AGRICULUTRE.

13.   SHRI LAKKAPPA
      GOUDAPPA KONI @ MULIMANI
      AGED ABOUT 24 YEARS.

14.   SIDDANNA
      GOUDAPPA KONI @ MULIMANI
      AGED ABOUT 23 YEARS.
15.   LAXMAPPA
                             3




      GOUDAPPA KONI @ MULIMANI
      AGED ABOUT 15 YEARS, MINOR,
      REPTED. BY HIS MOHTER
      APPELLANT NO.16.

16.   SMT.REVAKKA
      GOUDAPPA KONI @ MULIMANI
      AGED ABOUT 47 YEARS,
      OCC: AGRICULTURE.

      APPELLANT NO.6 TO 16 ARE
      R/O GUNJATTI TQ. GOKAK,
      DIST: BELGAUM-591307.
                                            ... APPELLANTS
(BY SRI ANTHONY R.RODRIGUES, ADV.)

AND

1.    NINGAPPA LAKKAPPA KONI @ MULIMANI
      AGE: 54 YEARS, OCC: AGRICULTURE,
      R/O. GUNJATTI, TQ: GOKAK-591 307,
      DIST: BELGAUM.

2.    GOUDAPPA
      S/O. LAKKAPPA KONI @ MULIMANI
      AGED ABOUT 49 YEARS,
      R/O. GUNJATTI, TQ: GOKAK-591 307,
      DIST: BELGAUM.

3.    SATTEPPA CHADAPPA BANDROLLI
      AGED ABOUT : 38 YEARS,
      R/O. GUNJATTI, TQ: GOKAK,
      DIST: BELGAUM-591 307.
                                          ... RESPONDENTS
(NOTICE TO RESPONDENT NOS.1 & 2 SERVED)
(BY SRI G.B.NAIK & SMT.P.G.NAIK ADV. FOR R.3)

      THIS RSA IS FILED UNDER SECTION 100 OF THE CODE
OF CIVIL PROCEDURE, 1908 PRAYING THIS COURT TO SET
ASIDE THE JUDGEMENT & DECREE DATED 21.04.2011 PASSED
IN R.A.NO.426/2010 BY THE DISTRICT JUDGE, HUKKERI,
SITTING AT GOKAK CONFIRMING THE JUDGMENT AND DECREE
DATED 19.11.2010 PASSED IN O.S.NO.232/2007 BY THE
PRL.SENIOR CIVIL JUDGE, GOKAK CONSEQUENTLY ALLOW THE
DECREE THE SUIT IN THE INTEREST OF JUSTICE AND EQUITY.
                                   4




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


                       : JUDGMENT :

The captioned regular second appeal is filed by

the unsuccessful plaintiffs whose suit for partition and

separate possession is dismissed by both the Courts

below by recording a finding that the suit for partition

is not maintainable.

2. The facts leading to the above said matter

are as under:

The appellants-plaintiffs filed a suit for partition

and separate possession by specifically contending

that the suit schedule properties are the joint family

ancestral properties of present appellants and

defendant Nos.1 and 2. The appellants-plaintiffs

specifically averred in the plaint that the suit schedule

properties are irrigated lands and they are yielding

sufficient income. It is alleged that in the month of

January-2007, respondent No.3-defendant No.3

started to interfere with appellants/plaintiffs'

possession over the properties at Sl.No.1 & 2 of the

schedule. On enquiry, the appellants-plaintiffs came to

know that defendant Nos.1 and 2 have sold Item

Nos.1 and 2 of the schedule property for sale

consideration of Rs.3,98,000/-. The appellants/

plaintiffs specific contention is that it was not for legal

necessity and hence filed the present suit for partition

and separate possession by contending that the

alienation made by defendant Nos.1 and 2 is not

binding on their share. They also challenged the

agreement to sell in respect of Item Nos.3 and 4 of

the schedule properties which were already subject

matter of suit in O.S.No.288/2006 filed for specific

performance of contract by present respondent No.3-

defendant No.3.

3. Respondent No.3-defendant No.3 contested

the proceedings by filing written statement.

Respondent No.3-defendant No.3 purchaser stoutly

denied the entire averments made in the plaint and

specifically contended that the present suit is collusive

suit. Defendant Nos.1 and 2 who are ancestors of

plaintiffs have sold Item Nos.1 and 2 for legal

necessity and in respect of Item Nos.3 & 4, defendant

Nos.1 & 2 have executed an agreement to sell.

Respondent No.3-defendant No.3 further specifically

contended that the present suit is a collusive suit and

the appellants-plaintiffs are seeking share only in

respect of alienated properties without including other

ancestral properties.

4. The Trial Court having assessed oral and

documentary evidence on record has answered Issue

No.1 in the negative and Issue No.2 in the affirmative

and recorded a categorical finding that defendant

Nos.1 & 2 have sold Item Nos.1 and 2 of schedule

properties and further agreed to sell Item Nos.3 & 4

for family necessity. While dealing with Issue No.2,

the Trial Court taken judicial note of the fact that

respondent No.3-defendant No.3 has succeeded in

O.S.No.288/2006, wherein respondent No.3-

defendant No.3 was granted discretionary relief of

specific performance of contract in respect of Item

Nos.3 & 4.

5. While dealing with additional Issue No.1,

the Trial Court having examined material on record

has recorded a specific finding that the present suit is

filed only in respect of alienated properties without

including the other joint family ancestral properties. It

is in this background, the Trial Court has come to

conclusion that the present suit is a collusive suit and

accordingly proceeded to dismiss the suit.

6. The First Appellate Court on re-appreciation

of oral and documentary evidence has concurred with

the findings of the Trial Court. The First Appellate

Court having meticulously examined the recitals in

sale deed vide Ex.P.1 has also concurred with the

findings of the Trial Court and has come to conclusion

that defendant Nos.1 and 2 who are ancestors were

compelled to sell Item Nos.1 and 2 for family

necessity in order to repay hand loan. The First

Appellate Court has also come to conclusion that they

were also compelled to execute an agreement to sell

in respect of Item Nos.3 & 4. It is in this background,

the First Appellate Court has also recorded a finding

that the appellants-plaintiffs have not at all produced

cogent and clinching evidence to substantiate their

claim that the family of appellants-plaintiffs and

defendant Nos.1 & 2 possessed sufficient nucleus

which generated sufficient income and there was no

necessity to alienate the suit schedule properties.

7. The First Appellate Court was also of the

view that the sale deed executed by defendant Nos.1

and 2 in respect of Item Nos.1 & 2 would bind on the

plaintiffs also as alienations were for family necessity.

It is against these concurrent findings, the

unsuccessful plaintiffs are before this Court.

8. Heard learned counsel appearing for the

appellants-plaintiffs and learned counsel appearing for

respondents and perused the judgments under

challenge.

9. Both the Courts have concurrently held

that the present suit is collusive suit. On examination

of the judgments under challenge, this Court would

find that defendant Nos.1 & 2 having sold Item Nos.1

& 2 and further having agreed to sell Item Nos.3 & 4

have instigated the present appellants-plaintiffs to file

present suit. The pattern and the conduct can be

gathered from the records. Defendant Nos.1 and 2

who are the ancestors and who are in charge of affairs

of the family have not chosen to contest the

proceedings and they are placed exparte. These

significant details would clearly indicate that this is a

collusive suit. If defendant Nos.1 & 2 are the

ancestors and it is a huge family comprising of nine

children to defendant No.1 and five children to

defendant No.2, no further enquiry is required. Having

regard to the number of family members would clearly

give an indication that they were not able to cope-up

with the domestic requirements and therefore were

compelled to avail hand loans. Defendant Nos.1 & 2

having sold Item Nos.1 & 2 properties and also having

lost their rights in Item Nos.3 & 4 pursuant to decree

passed in O.S.No.288/2006, cannot fight litigation

through their children. One more relevant fact which

would go against appellants-plaintiffs is that they have

consciously excluded other ancestral properties which

are in their possession.

10. It is a trite law that non-alienating

coparceners can seek for partition if they are

aggrieved by alienation either by the kartha or by any

one of family members i.e., best cause of action. But

in the present case on hand, the suit is filed

consciously only against those properties which are

subject matter of alienation at the instance of

defendant Nos.1 and 2. This clearly establishes that

the present suit is collusive suit. Therefore, even

otherwise, the suit for partition and separate

possession is not maintainable. Since there is a

concurrent finding by both the Courts that the present

suit filed by appellants-plaintiffs is a collusive suit,

there is no scope for interference under Section 100 of

CPC. No substantial question of law arises. The appeal

is devoid of merits. Accordingly the same stands

dismissed.

SD/-

JUDGE EM