Saroja W/O Sharanappa ... vs Basavaraj S/O Gurupadapap ...
2022 Latest Caselaw 2385 Kant

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             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

        DATED THIS THE 15TH DAY OF FEBRUARY, 2022

                         BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

           R.S.A.NO.100838 OF 2014 (DEC/INJ)

BETWEEN:

1. SAROJA W/O SHARANAPPA
MUSAKINABAVI, AGE: 53 YEARS,
OCC: HOUSEHOLD & AGRI
R/O LAKKUNDI, TAL & DIST: GADAG-582101

2. KUMARI CHANNAVVA
D/O SURESH HOSAMANI,
AGE: 20 YEARS, OCC: HOUSEHOLD,
R/O LAKKUNDI, TAL & DIST: GADAG-582101.

3. KUMARI SUREKHA
D/O SURESH HOSAMANI,
AGE: 16 YEARS, OCC:STUDENT,
R/O LAKKUNDI,
TAL & DIST: GADAG.

REPRESENTED BY HER M/G NATURAL
FATHER SURESH S/O BASAVANTAPPA
HOSAMANI, OCC: SERVICE,
R/O ABBIGERI, TQ & DIST: GADAG-582101.

4. SURESH
S/O BASAVANTAPPA HOSAMANI,
AGE: 47 YEARS,
OCC: SERVICE, R/O ABBIGERI,
TAL & DIST: GADAG-582101.
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                                               ...APPELLANTS

(BY SRI.S.A.AKALAWADI ADV. FOR SRI.PRUTHVI K.S., ADV.)

AND:

1. BASAVARAJ S/O GURUPADAPPA
BEERANUR, AGE: 52 YEARS,
OCC: AGRICULTURE,
R/O HOLEALUR, TAL: RON,
DIST: GADAG-582101.

2. RENUKAPRASAD
S/O SHIDDALINGAYYASWAMI HIREMATH,
AGE: 37 YEARS, OCC: BUSINESS,
PROPRIETOR, NOW AT VIJAYA BOOK
DEPOT STATION ROAD, GADAG,
DIST: GADAG.
OLD R/O 8TH CROSS, K.C.RANI ROAD,
DIST: GADAG-582101.

                                             ...RESPONDENTS

(BY SRI.GIRISH S.HIREMATH, ADV. FOR C/R2)

     THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL
PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 25.08.2014 PASSED BY THE SENIOR CIVIL JUDGE, RON IN
RA NO.04/2014, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 03.01.2014 PASSED BY THE
PRINCIPAL CIVIL JUDGE AND JMFC, RON IN O.S.167/2011, IN THE
INTEREST OF JUSTICE AND EQUITY.


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

The captioned second appeal is filed by unsuccessful

defendant Nos.2 to 4 who are questioning the concurrent

judgment and decree of the Courts below wherein suit filed by

the respondent/plaintiff is decreed declaring

respondent/plaintiff as absolute owner of the suit schedule

property and consequently, perpetual injunction is granted

restraining the present appellants from interfering with the

respondent/plaintiff possession over the suit schedule

property.

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

The respondent/plaintiff is asserting right and title over

the suit schedule property on the basis of registered sale deed

dated 20.05.1999. The respondent/plaintiff has claimed that

the suit schedule property was originally owned by one

Bheemappa Bellad who had two sons by name Shivappa and

Maribasappa. It is not in dispute that suit property was

allotted to the share of Maribasappa as per mutation entry

No.436. The respondent/plaintiff further claimed that

Maribasappa had no issues and he died leaving behind his wife

Sangavva as the only surviving legal class-I heir. It is further

stated that the said Sangavva became absolute owner of the

suit land and on account of old age, she was being looked

after by defendant No.1 and therefore, out of love and

affection transferred the suit land by giving a vardi to the

Village Accountant in the year 1989 i.e., 20.08.1989 and

accordingly, name of defendant No.1 was mutated to the

revenue records. In 1995, the defendant No.1 sold the suit

land to one Basavaraj Kellur under registered sale deed. The

said Basavaraj Kellur in-turn sold the suit land under

registered sale deed dated 20.05.1999 in favour of the present

respondent/plaintiff. Therefore, the respondent/plaintiff by

placing reliance on a registered document asserted right and

title and claimed that he is the absolute owner of the suit

schedule property. The cause of action to file the present suit

is on account of defendant Nos.2 to 5 filing a collusion suit in

O.S.No.38/2011 seeking partition and separate possession.

Hence, respondent/plaintiff filed the present suit in

O.S.No.167/2011 seeking relief of declaration and

consequential relief of injunction.

3. On receipt of summons, the present appellants who

were arrayed as defendant Nos.2 to 5 contested the

proceedings. The appellant Nos.2 and 4 filed written

statement whereas defendant Nos.3 and 5 were placed

exparte. The appellant Nos.2 and 4 also admitted that suit

property originally belonged to Bheemappa and after his death

his two sons succeeded to the suit schedule property and the

same was allotted to Maribasappa. However, the present

appellants specifically contended that after death of Sangavva,

the present appellants have also inherited the property under

Section 15(1) of Hindu Succession Act and therefore, claimed

that defendant Nos.1 to 5 i.e., appellants and defendant No.1

are joint owners of the suit land.

     4.   The    Trial     Court       having     assessed   oral     and

documentary     evidence     has       accepted    the   case    of   the

respondent/plaintiff. While answering issue Nos.1 to 4 in the

affirmative, the Trial Court though has recorded a categorical

finding that respondent No.1/defendant No.1 had no absolute

right to execute sale deed in respect of entire extent. The

Court found that defendant No.1 had no authority to sell the

entire extent. At the same time, the Trial Court was of the

view that defendant Nos.2 to 5 who were also entitled for

share in the suit land, as they are class-II heirs. The Trial

Court was of the view that as on the date of filing of the suit

by the respondent No.2/plaintiff, almost 16 years have lapsed

and defendant Nos.2 to 5 have not chosen to contest both the

sale deeds. Therefore, Trial Court was of the view that based

on a registered document, respondent/plaintiff has acquired

right and on account of lapse of 16 years wherein family of

defendant Nos.2 to 5 has lost possession have not taken any

steps to file appropriate suit within 12 years as prescribed

under Article 109 of Limitation Act. Therefore, Trial Court has

proceeded to answer issue No.1 in the affirmative declaring

the respondent/plaintiff as the absolute owner of the suit

schedule property.

5. While dealing with issue Nos.2 and 3, the Trial

Court has come to conclusion that the evidence on record

would clearly indicate that it is the respondent No.2/plaintiff

who is in lawful possession over the suit schedule property

and his possession is supported by registered sale deed in his

favour. Therefore, the Trial Court was of the view that

respondent No.2/plaintiff has succeeded in establishing his

lawful possession and also interference by the present

appellants/defendant Nos.2 to 5. On these set of reasonings,

the Trial Court has proceeded to decree the suit declaring the

respondent No.2/plaintiff as absolute owner and has

proceeded to grant perpetual injunction thereby restraining

the present appellants from interfering with respondent

No.2/plaintiff's peaceful possession and enjoyment over the

suit schedule property.

6. Feeling aggrieved by the judgment and decree of

the Trial Court, the present appellants preferred an appeal

before the Appellate Court. The Appellate Court on

appreciation of ocular and documentary evidence

independently has also come to conclusion that the admitted

facts and the material on record would clearly indicate that the

present appellants are also class-II heirs of Smt. Sangavva

and therefore, the schedule land would also devolve upon the

present appellants under Section 15(1)(b) of the Hindu

Succession Act. However, the Appellate Court was also of the

view that defendant No.1 sold the suit land in favour of

Basavaraj Kellur way back in 1995 who in-turn has sold the

suit schedule property in favour of respondent No.2/plaintiff

under registered sale deed dated 20.05.1999 as per Ex.P-5.

The Appellate Court has also taken judicial note of the fact

that Sangavva during her lifetime has not disputed the

mutation produced at Ex.D-5. The Appellate Court has also

taken note of the fact that Sangavva died in 2007. The

Appellate Court was also of the view that in terms of Article

109 of Limitation Act, the defendant Nos.2 to 5 having lost

possession have not taken steps questioning the alienation of

ancestral property within 12 years and therefore, the Appellate

Court was also of the view that the right, if any, of defendant

Nos.2 to 5 is lost and therefore, defendant Nos.2 to 5 cannot

resist as they have not chosen to challenge the sale deed in

favour of Basavaraj and subsequent sale deed in favour of

respondent No.2/plaintiff. On these set of reasonings, the

Appellate Court has also proceeded to concur with the

judgment and decree of the Trial Court and consequently, the

appeal is dismissed.

7. Heard the learned counsel appearing for the

appellants. Perused the judgment under challenge.

8. The material on record would clearly indicate that

one Sangavva inherited the property left behind by her

husband Maribasappa and she became the absolute owner of

the suit land. It is also forthcoming from the records that on

account of her old age, she transferred the suit land only by

way of vardi. Though defendant No.1 did not acquire any

right and title based on a vardi, however, he had 1/5th share in

the suit land as a class-II heir and he inherited the property

along with his brothers i.e., defendant Nos.2 to 5 under

Section 15(1)(b) of Hindu Succession Act. However, asserting

absolute right based on a vardi, the respondent

No.1/defendant No.1 sold the suit land in favour of Basavaraj

Kellur under registered sale deed in 1995. The said Basavaraj

Kellur in-turn has sold the suit land in favour of the

respondent No.2/plaintiff under registered sale deed dated

20.05.1999. The present suit is filed by the respondent

No.2/plaintiff asserting absolute ownership and also

possession in the year 2011.

9. When there is a registered document, the

respondent No.2/plaintiff obviously would acquire a voidable

title under the registered sale deed executed by Basavaraj

Kellur. If these two registered documents are taken into

consideration, then I am of the view that both the Courts were

justified in holding that the registered sale deeds in favour of

respondent No.2/plaintiff and earlier sale deed which was in

favour of plaintiff's vendor namely Basavaraj Kellur have gone

unchallenged. Therefore, the vendor of the respondent

No.2/plaintiff and in-turn respondent No.2/plaintiff would

acquire a voidable title in the suit land. The present

appellants have not chosen to either challenge the said

alienation which has taken place in 1995 nor they have filed a

suit for partition and separate possession immediately as their

family lost possession way back in 1995 on account of

alienation by respondent No.1/defendant No.1. It is in this

background, both the Courts have proceeded to declare

respondent No.2 as absolute owner of the suit schedule

property by placing reliance on the registered sale deed dated

20.05.1999.

10. I do not find any illegality or infirmity in the

judgment and decree of the Courts below. Based on a

registered document, respondent No.2 has acquired a voidable

title and the same is not at all questioned by the present

appellants till this date. In that view of the matter, no

substantial questions of law arises for consideration.

Accordingly, the appeal is dismissed.

Sd/-

JUDGE

CA