Irappa S/O. Basappa Kolal vs Basappa S/O. Ramappa Kolal
2022 Latest Caselaw 1045 Kant

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

      DATED THIS THE 24TH DAY OF JANUARY 2022

                        BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

              R.S.A.NO.100441/2014 (PAR)
BETWEEN

SRI IRAPPA S/O BASAPPA KOLAL,
AGE : 24 YEARS, OCC: AGRICULTURE & COOLIE,
R/O KARLAHALLI, TQ: MUNDARAGI,
DIST: GADAG, PIN CODE-582118.
                                             ... APPELLANT
(BY SRI S.S.KOLIWAD, ADV.)

AND

BASAPPA S/O RAMAPPA KOLAL,
SINCE DECEASED BY HIS LRS.,

1.    SRI SHAVANTRAVVA W/O BASAPPA KOLAL,
      AGE : 49 YEARS, OCC: AGRICULTURE & COOLIE,
      R/O KARLAHALLI, TQ: MUNDARAGI,
      DIST: GADAG, PIN CODE-582118.

2.    SMT.NAYANA W/O VEERAPPA METI,
      AGE : 41 YEARS, OCC: AGRICULTURE,
      R/O KALAKERI, TQ: MUNDARAGI,
      DIST: GADAG, PIN CODE-582118.
                                          ... RESPONDENTS
(BY SRI S.K.KAYAKMATH, ADV. FOR R.2.)
(NOTICE TO RESPONDENT NO.1 : SERVED)

      THIS APPEAL IS FILED UNDER SECTION 100 OF THE
CODE OF CIVIL PROCEDURE, 1908, PRAYING THIS COURT TO
SET ASIDE THE JUDGMENT AND DECREE DATED 15.03.2014
PASSED IN R.A.NO.57/2013 BY THE PRINCIPAL SENIOR CIVIL
JUDGE & CJM, GADAG AND CONFIRMED THE JUDGMENT AND
DECREE DATED 07.10.2013 PASSED IN O.S.NO.3/2009 BY THE
CIVIL JUDGE AND JMFC, MUNDARAGI IN THE INTEREST OF
JUSTICE AND EQUITY.
                                 2




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


                          : JUDGMENT :

The captioned second appeal is filed by the

plaintiff being aggrieved by the judgment and decree

passed by the Appellate Court in dismissing the suit

insofar as suit land bearing Sy.No.392/A.P.3 totally

measuring 2 acres 30 guntas.

2. Facts leading to the present case are as

follows:

The appellant/plaintiff filed a suit for partition

and separate possession in O.S.No.3/2009 by

specifically contending that the suit land is joint family

ancestral property of appellant/plaintiff and defendant

Nos.1 and 2. The appellant/plaintiff specifically

contended that respondent No.1/defendant No.1

taking undue advantage of the fact that the suit land

bearing Sy.No.392/A.P.3 was exclusively standing in

his name has sold the same in favour of respondent

No.2/defendant No.3 without there being any family

legal necessity. The appellant/plaintiff specifically

contended that the sale was not for the benefit of the

family and therefore claims that the alleged alienation

by respondent No.1/defendant No.1 in favour of

respondent No.2/defendant No.3 would not bind on

the plaintiff share and hence sought for partition and

separate possession in all the suit schedule properties.

3. The Trial Court on appreciation of oral and

documentary evidence on record decreed the suit of

the plaintiff.

4. Respondent No.2/defendant No.3 feeling

aggrieved by the said judgment and decree of the Trial

Court in granting share in the property, preferred an

appeal before the First Appellate Court in

RA.No.57/2013. The Appellate Court having

independently assessed the oral and documentary

evidence on record, however found that the alienation

made by respondent No.1/defendant No.1 in favour of

respondent No.2/defendant No.3 was in fact for family

necessity. The Appellate Court has culled out the

relevant cross-examination of plaintiff, who is

examined as PW.1 at paragraph No.21 of the

judgment. The Appellate Court having referred to the

cross-examination found that relation of

appellant/plaintiff with defendant No.1 and 2 is very

cordial and they are all residing together under one

roof. The First Appellate Court has further taken note

of categorical admission given by the plaintiff who has

admitted that the family was under financial distress.

The Appellate Court also found that the plaintiff has

further admitted that the present suit is filed only to

harass respondent No.2/defendant No.3. On these set

of grounds, the Appellate Court has reversed the

finding of the Trial Court insofar as Item No.1A

property bearing Sy.No.392/A.P.3 measuring 2 acres

30 guntas, which was sold by respondent

No.1/defendant No.1 under a registered sale deed

dated 06.09.2008.

5. It is against this divergent finding of the

Appellate Court, the appellant/plaintiff is before this

Court.

6. Heard learned counsel appearing for the

appellant/plaintiff and learned counsel appearing for

respondent No.2/defendant No.3. Perused the

judgment under challenge.

7. It is not in dispute that the suit schedule

properties are joint family ancestral properties. It is a

trite law that a kartha cannot sell the coparcenery

property without consent of other non-alienating

coparceners. It is also a trite law that if there is an

alienation of joint family ancestral property, the same

would not bind on the other non-alienating

coparceners and it would be suffice to file a suit for

partition and separate possession.

8. In the present case on hand respondent

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

appellant/plaintiff has alienated the suit land bearing

Sy.No.392/A.P.3 measuring 3 acres 30 guntas under a

registered sale deed dated 06.09.2008. Now the

present suit for partition and separate possession is

filed in the year 2009. Even at the time of recording

evidence, the appellant/plaintiff has admitted in an

unequivocal terms that his relation with the father and

mother is very cordial. He has further admitted that

the suit land was sold for legal family necessity. He

has admitted in an unequivocal terms that the family

was under financial distress. Strangely he has also

admitted that the present suit is filed only to harass

respondent No.2/defendant No.3. The clinching

evidence on record indicates that alienation was for

the benefit of the family. Therefore it is to be

presumed that even non-alienating coparceners have

received the sale consideration and that was utilized

for the benefit of the family. Therefore, the

appellant/plaintiff cannot contend that the alienation

done by his father in favour of respondent

No.2/defendant No.3 is not binding on his legitimate

share. Though the initial burden is always on the

purchaser to prove that the sale was for legal

necessity, the respondent by way of rebuttal evidence

have succeeded in establishing that respondent No.1

has sold the suit land for the benefit of the family. This

relevant evidence is totally ignored by the Trial Court

while considering the claim of the appellant/plaintiff in

respect of alienated property and therefore the finding

of the Trial Court on Issue No.2 is perverse and

contrary to the clinching evidence on record. The

appellate Court has rightly dealt with the matter and

has come to conclusion that the appellant/plaintiff and

respondent Nos.1 and 2 all are residing together and

their relations are very cordial. If the relations are

very cordial, then it presupposes that the sale deed

executed by respondent No.1/defendant No.1 in

favour of respondent No.2 was with consent of the

appellant/plaintiff also. The fact that, the plaintiff has

strangely admitted that the present suit is filed only to

harass respondent No.2/defendant No.3 would clearly

give an indication that in all probabilities the present

suit is filed at the instance of his father i.e.,

respondent No.1/defendant No.1. Therefore, the

judgment and decree of the Appellate Court is in

accordance with law and as such the appellant/plaintiff

is not entitled for any share in the property Item

No.1A. The sale deed executed by respondent

No.1/defendant No.1 would definitely bind the

appellant/plaintiff also. However, he is entitled to seek

his legitimate share in the other properties. No

substantial question of law arises. The appeal is devoid

of merits and accordingly the same stands dismissed.

Sd/-

JUDGE EM