Kumari Poonam D/O Mahadev ... vs Shri Mahadev
2022 Latest Caselaw 16 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

       DATED THIS THE 3RD DAY OF JANUARY, 2022

                          BEFORE

     THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY

           REGULAR FIRST APPEAL No.784/2007 (PAR)

BETWEEN:

1.      KUMARI POONAM D/O MAHADEV DHAMANEKAR
        AGE: 22 YEARS, OCC;STUDENT

2.      KUMARI MEGHA D/O MAHADEV DHAMANEKAR
        AGE: 21 YEARS, OCC;STUDENT

3.      VIKRAM S/O MAHADEV DHAMANEKAR
        AGE: 19 YEARS, OCC;STUDENT

4.      KUMAR VIJAY S/O MAHADEV DHAMANEKAR
        AGE: 14 YEARS, OCC;STUDENT
        MINOR REPRESENTED BY M/G AND NATURAL MOTHER
        APPELLANT NO.5

5.      SMT.SHALAN W/O MAHADEV DHAMANEKAR
        AGE: 45 YEARS, OCC;HOUSEHOLD WORK

      ALL ARE R/O H.NO.52, KAMLESHAR ROAD,
      MADHARPUR VADAGAON, BELGAUM 590 001.
                                           ...APPELLANTS
(BY SRI. S. B. HEBBALLI, ADVOCATE)

AND:

1.     SHRI MAHADEV
       S/O.OMANNA DHAMANEKAR
       AGE: 55 YEARS, OCC:AGRICULTURE,
                             2




     R/O H.NO.52, KAMLESHWAR ROAD,
     MADHARPUR, VADAGAON BELGAUM 590 001

2.   YALLAPPA OMANNA DHAMANEKAR
     AGE: 45 YEARS, OCC;AGRICULTURE
     R/O.KULKARNI GALLI
     JUNE BELGAUM, BELGAUM 590 001

3.   SHRI JITENDRA PANDURANG KADAM
     AGE: 27 YEARS, OCC:BUSINESS
     R/O.SUJI BUILDING, MANGALWARPETH,
     TILAKWADI, BELGAUM 590 001.

4.   SMT. SUNANDA, W/O PANDURANG KADAM
     AGE: 59 YEARS, OCC:HOUSEHOLD WORK,
     R/O.SUJI BUILDING, MANGALWARPETH,
     TILAKWADI, BELGAUM 590 001.

5.   SHRI BASAVARAJ NINGAPPA MATTIKOP
     AGE: 48 YEARS, OCC:AGRICULTURE
     R/O MALL GALLI, BELGAUM 590 001.

6.   SHRI RAVINDRA PANDURANG KADAM
     AGE: 25 YEARS, OCC:BUSINESS,
     R/O. MALL GALLI, BELGAUM 590 001.

                                           ...RESPONDENTS

(BY SMT. PALLAVI PACHCHAPURE FOR SRI. F. V. PATIL,
ADVOCATE FOR R5; R1 TO R4 & R6 - SERVED)
                          ---

     THIS REGULAR FIRST APPEAL IS FILED U/S 96 OF CPC
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DT.31.01.2007 PASSED IN OS.NO.243/2002 ON THE FILE OF
THE I ADDL.CIVIL JUDGE (SR.DN.), BELGAUM, INSOFAR AS IT
RELATES TO DISMISSAL OF SUIT IN RESPECT OF 'B' SCHEDULE
PROPERTY AND DECREE THE SUIT IN ITS ENTERITY.

     THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                                     3




                             JUDGMENT

The plaintiffs being not satisfied with the

judgment and decree d ated 31.01.2007 p assed in

O.S.No.243/2002 by the Court of I Addl. Civil Judge

(Sr.Dn.), Belgaum, have p referred this Regular First

Appeal challenging the impugned judgment and decree

to the extent it relates to rejection of the plaintiffs'

case in respect of the suit schedule 'B' p roperty.

2. The b rief facts of the case as revealed from

the records are:

Plaintiffs No.1 to 4 are the children of plaintiff

No.5 and defendant No.1. Defend ant No.2 is the

brother of defendant No.1 and defendant Nos. 3 to 6

are the purchasers of suit schedule prop erties. It is

the case of the plaintiffs that, there was a p artition

of the family p rop erties between the defend ants

No.1 and 2 and under the said partition, the suit

schedule p roperties along with other p roperties had

fallen to the share of the defend ant No.1. It is the

further case of the plaintiffs that, defend ants No.3 to

6 have created bogus sale deed s dated 19/3/1999

and 20/4/2001 resp ectively in respect of suit

schedule p roperties and the suit sched ule properties

are not sold by the first defendant in favour of

defend ants 3 to6 or anybody else at any point of

time. The p laintiffs contended that d efend ant No.1

had no right to sell the entire suit schedule property,

as the plaintiffs had also right and title over suit

schedule prop erties. It is their contention that the

sale deeds are bogus and concocted documents. The

plaintiffs p rayed for partition and sep arate

possession to the extent of 5/6 t h share in the suit

schedule properties by metes and bounds, by holding

that the sale deeds d ated 19/3/1999 and 20/4/2001

are not bind ing on them. Plaintiffs further sought for

permanent injunction to restrain defendants No.3 to

6 or anybody claiming under them from obstructing

and dispossessing the p laintiffs from the suit

schedule p roperties.

Defend ants No.1 and 2, who were served with

suit summons, remained absent and they were

placed ex-p arte. Defendants 3, 4 and 6 had entered

app earance and had filed there written statement.

Defend ant No.5, who is the purchaser of the suit

schedule 'B' property, had filed a sep arate written

statement contending that he was the bona fide

purchaser of the suit schedule 'B' prop erty and the

said prop erty was sold by the first d efendant as a

Karta in the interest of the family members. He also

contend ed that the p roperty was purchased for a

valuable consideration of `1,85,000/- and he has

made vast imp rovement in the suit schedule 'B'

property. He has also contended that the plaintiffs

were not in possession of the suit schedule

properties and the valuation of the suit and court fee

paid was not prop er and correct. Accord ingly he

prayed to dismiss the suit.

3. The trial Court on the basis of the rival

plead ings had framed as many as six issues, which

reads as hereund er:

i. Whether the p laintiffs prove tha t the sale deed da ted 20.04.2001 executed in favour of defendants 3, 4 and 6 in res pect of

land bearing RS No.566/ 1 measuring 1 Acre 36 Gun tas a nd t he sa le deed dated

measuring 1 ac re 4 guntas are sham and hallow documents as alle ged in the plaint?

ii. Whether the pla intiffs prove that t he suit schedule pro perties are the joint fam ily propert ies of plaintiffs and defendant No.1 as alleged in the plaint?

            iii.     Whether      the        plain tiffs        prove        alleged
                     inte rference      by     defendants          3    to    6   as
                     alle ged in the plaint?

            iv.      Whether the defendants 3 to 6                     pro ve tha t
                     they   are   the     bona      fide        purchasers        for

val uable cons ide ration as contended in the written statem ent?

v. What relief the pa rties are entitled t o?

vi. What order and decree?

4. During the course of trial in sup port of the

plaintiffs' case 3 witnesses were examined as PWs.1 to

3 and 47 documents were marked as Exhibits P1 to

P47. In support of the defence, two witnesses were

examined as DWs.1 and 2 and 13 documents were

marked as Exhib its D1 to D13.

5. The trial Court thereafterwards heard the

arguments on both sides and by its judgment and

decree dated 31.01.2007, has partly allowed the suit

and held that the plaintiffs are entitled for 5/6 t h share

in the suit schedule 'A' and 'C' properties and also held

that the sale deed dated 20.04.2001 was not b inding

upon the plaintiffs and also g ranted a p ermanent

injunction in favour of the plaintiffs in respect of the

suit schedule 'A' and 'C' properties, as against

defend ants 3, 4 and 6 and rejected the p rayer of the

plaintiffs in respect of suit sched ule 'B' p rop erty. Being

agg rieved by the same, the plaintiffs have app roached

this Court in this Regular First Appeal, challenging the

imp ugned judgment and decree to the extent it relates

to rejection of their claim in resp ect of the suit

sched ule 'B' prop erty.

6. Learned counsel for the appellants submitted

that the trial Court has given a find ing that suit

sched ule prop erties are joint family p roperties and

therefore there was no justification on the p art of the

trial Court to dismiss the suit insofar as it relates to

suit schedule 'B' property. He submits that, once the

trial Court has given a finding that the plaintiffs are

entitled for a share in the suit schedule A and C

property, the same yard stick ap plies even in respect of

the suit schedule 'B' p rop erty and therefore, the

judgment and decree to the extent it relates to

rejection of p laintiffs' p rayer in respect of suit schedule

'B' property is concerned, is bad in law. He submits

that the plaintiffs have led sufficient evid ence b efore

the trial Court and also have produced material to

estab lish that the suit schedule 'B' p rop erty was not

sold by defendant No.1 in the interest of the plaintiffs

or for the necessity of the family and therefore, the

trial Court oug ht to have d ecreed the suit in its

entirety.

7. Per contra, learn ed counsel appearing for the

fifth defend ant submitted that the said defend ant was a

bona fid e purchaser of suit schedule p roperty for a

valuab le consid eration and he has been in actual

possession and enjoyment of suit schedule property.

She further contended that, the suit is a collusive suit

between the p laintiffs and defend ant No.1. She

submits that read ing of the plaint averments would

make it very clear that, intention of the plaintiffs was

to annul the sale d eed s and not for p artition and

sep arate possession of the suit schedule property. She

refers to the ad dress of the plaintiffs and defendant

No.1 and submits that they are still resid ing jointly.

She also submits that there is no averment whatsoever

in the p laint made ag ainst d efend ant No.1. She also

submits that there is no averment in the plaint that

there is a strained relationship b etween the p arties or

that the defend ant No.1 has sold the joint family

properties neg lecting the interest of the family

memb ers and for the purpose of meeting the exp enses

of his vices and other needs. She has relied upon the

Judgment of the co-ordinate bench of this court

reported in ILR 2003 Karnataka 1491 in the case of

Gouramma and Ors. Vs. Basappa and Ors. and

submits that the intention of the plaintiffs is not for

partition and separate possession of the suit schedule

property, but it is only to annul the sale deeds which

are mad e by the d efend ant No.1 in favour of

defend ants No.3 to 6 and accordingly she prays to

dismiss the app eal.

8. The points for consideration that would arise

in this appeal would be:

i. Whether t he trial Court was justif ied in dismiss ing t he suit of the pla intiffs insofar as it relates to suit schedule 'B ' prop erty?

           ii.       Whether t he judgm ent and dec ree passed
                     by   the   tria l   Court    suffers    from         any
                     material   irregula rity    or   illega lity    whic h
                     calls for interfere nce by this Court?


      9.         I    have      carefully       considered          the     rival

arguments addressed by both sides and also p erused

the oral and documentary evid ence availab le on record .

10. The p laintiffs in ord er to estab lish their case

have examined PWs. 1 to 3 and also have got marked

47 documents as Exhib its P1 to P47. Plaintiff No.5, the

wife of d efend ant No.1 has been examined as PW1.

She has reiterated the p laint averments. The evidence

of PWs.2 and 3, who have b een examined on behalf of

the p laintiffs is of no help to them. In their cross-

examination, they have categorically stated they are

not aware of the sale d eed s executed by defendant

No.1 in favour of defend ants No.3 to 6. They have also

stated that they are not aware of the facts and

circumstances of the case and they had app eared

before the Court at the instance of the plaintiff No.5.

11. A reading of the plaint would go to show that

the entire attack of the plaintiffs is on the imp ugned

sale deeds executed by d efendant No.1. in favour of

defend ants No.3 to 6. Under the sale d eed dated

20/4/2001, defendant No.1 had sold suit schedule 'A'

and 'C' p roperties in favour of d efend ants No.3, 4 and

6, while under the sale deed dated 19/3/1999,

defend ant No.1 has sold suit schedule 'B' p roperty in

favour of fifth defend ant. It has b een sp ecifically

contend ed in the plaint that the aforesaid two sale

deeds are bogus documents and they are created by

the defend ants No.3 to 6 in their favour. It is also

contend ed that d efend ant No.1 at no point of time has

executed the said sale d eeds in favour of defend ants

No.3 to 6.

12. From the overall reading of the plaint

averments, it can be g athered that, it is the case of the

plaintiffs that aforesaid two sale deeds are bogus and

created documents and therefore the same are not

binding on the plaintiffs. Nowhere in the plaint the

plaintiffs have admitted or contend ed that the

defend ant No.1 had executed the sale deeds in respect

of the suit schedule p roperties in favour of defendants

No.3 to 6, neglecting the interest of the plaintiffs,

though they were the joint owners of the suit schedule

properties. There is no averment whatsoever in the

plaint with reg ard to the strained relationship b etween

the plaintiffs and defend ant No.1. It is not the case of

the plaintiffs that defend ant No.1 has sold the suit

sched ule properties, specifically schedule 'B' property,

which is the subject matter of the present appeal,

against the interest of the p laintiffs in order to meet

his p ersonal req uirements. It is not the case of the

plaintiffs that the first d efend ant was addicted to vices

and therefore he had neglected his wife and children

and also sold the joint family p roperties in which the

plaintiffs had a right. Further, the plaintiffs have also

not contend ed or stated in the plaint about what are

the p roperties which have been allotted to the share of

the first defend ant in the alleged oral p artition between

the first defend ant and second defend ant.

13. The p laint is b erift of the relevant b asic

plead ings req uired to seek the reliefs what has been

sought for by the plaintiffs in the suit. Having reg ard to

averments made in the plaint, the trial Court oug ht to

have g iven a finding as to whether the aforesaid two

sale deeds were created and concocted documents as

alleged b y the plaintiffs. The trial Court in sp ite of

app reciating this asp ect of the matter has p roceeded to

consid er the case and give a finding as to whether the

sale made by the defendant No.1 was ag ainst the

interest of the plaintiffs or whether the sale was mad e

for the necessity of the family and in the interest of the

plaintiffs. In my considered view, the trial Court has

completely exceeded its jurisdiction in consid ering the

case of the plaintiffs having regard to the plead ing s

available on record, more p articularly the averments

mad e in the plaint.

14. Though the learned counsel for the for the

plaintiffs has sought to contend that, even thoug h the

plaint lacks necessary particulars or alleg ations as

against d efendant No.1 with reg ard to the sale made by

him in resp ect of the suit schedule p roperties in favour

of defendants 3 to 6, which accord ing to them was

against the interest of the plaintiffs, the plaintiffs have

adduced evid ence to the said effect and the overall

material availab le on record would be sufficient to

demonstrate that the sale made by defend ant No.1 was

not for necessity of the family or in the interest of the

family, I am afraid that such a contention of the

learned counsel for the plaintiffs cannot be appreciated

for the simple reason that, in the absence of necessary

plead ings, any amount of oral and documentary

evidence produced will not subsequently improve the

case of the plaintiffs.

15. The Division Bench of this Court in the case

of Rudrawwa Vs. Balawwa and Another reported in

Mysore L.J. 1967 (1) 71, has held that the scope of the

suit is d etermined by the plead ings in the case. Any

amount of evid ence cannot fill up the lacuna in the

plead ings. If the case is not pleaded, the same cannot

be p ermitted .

16. It is also a settled principle of law that the

plaintiff is req uired to estab lish his case independ ently

without relying on the weakness of the d efence. In the

case on hand , the plaintiffs have not at all p lead ed that

the sale mad e by defend ant No.1 was in his interest

and not in the interest of the family. They have also

not plead ed with reg ard to any strained relationship in

the family and as observed earlier, the plead ings as

well as p erusal of the cause title would clearly go to

show that the plaintiffs and defend ant No.1 are

resid ing tog ether even as on this date.

17. Further, as rig htly contended by the learned

counsel app earing for fifth d efend ant, the entire

attemp t of the plaintiffs in the case on hand was to

challenge the sale of the suit schedule p roperties mad e

by defend ant No.1. It is their specific case that the

sale deeds which stand in favour of defend ants No.3 to

6 are created and bogus documents. The p laintiffs have

utterly failed to prove this aspect of the matter. They

have sought to improve their case by contending that

the sale mad e by the first d efendant was not in the

interest of the family. But to that extent there is no

plead ing whatsoever by them in the plaint. The

judgment of the Co-ord inate Bench of this Court in

Gourawwa's case (supra) in almost id entical facts

would be applicable to the case on hand . In the said

case, at paragraphs 14 and 15, the Co-ordinate Bench

of this Court has observed as follows:

"14. In this c ase the alleg ations m ade by the appellants are only to ch allenge the alienation made by the 1s t r esponde nt. As admitted by the wit nesses, they a re still liv ing together. It is settled law tha t share to a minor c an be given only if any one of the following co nditio ns are satisfied:

(i) where the in terest of the m inor is likely to be prejudice d by the property be ing left in the hands of the other coparceners;

(ii) where the propert y is not being prope rly managed; (iii) where the minor 's rights are denied; or

(iv) where the manager dec lines to provide for the minor's m aintenance.

15. From the evidence adduced by the appellant it is abundant ly clear that none of these requirements are satisfied. On the other hand, the object of filing this suit is to set aside the sale dee d exec uted by the 1st responde nt in favour of the 2nd respondent. As state d above, the a ppella nts ha ve failed to esta blish that the respondent 1 executed the sale when he was under the influenc e of liquor; on the other hand, the evidence discloses that the alienation was for the benefit of th e family and also to improve other properties of the par ties. The allegations made in t he plaint in regar d to claim ing part ition of the property ar e totally vague a nd interest of minor is involve d. When part ition of coparce nary propert y is sought for on beha lf of minors, the allegat ions should satisfy any one of the conditions m entio ned supra and t he sam e have to be es tab lishe d by cogent and convinc ing evidence."

18. Further, from the overall app reciation of the

oral and documentary evidence available on record, it

is very clear that plaintiffs being the wife and children

of the defend ant are resid ing together and the

marriag e of the fifth defendant with the first defendant

is still subsisting. Nowhere in the plaint they have

mad e any allegation whatsoever ag ainst the first

defend ant, much less they have questioned the sale

deeds on the ground that the sale has been mad e by

the first defendant in his p ersonal interest and not for

the interest of the family. It is the specific case of the

plaintiffs that the sale d eeds are concocted and bogus

documents. I find force in the contention of the learned

counsel for respondent No.5 that the suit has been filed

by the wife and child ren in collusion with the first

defend ant. This Court also cannot loose sight of the

fact that first d efend ant, who has been served before

the trial Court as well as before this Court, has

remained ab sent, even though he is very much residing

along with the plaintiffs. The trial Court taking into

consid eration the averments made in the sale deed

dated 19/3/1999, under which the defendant No.1 had

sold the suit sched ule 'B' property in favour of

defend ant No.5 has given a finding that the suit

sched ule 'B' prop erty has been sold by defend ant No.5

for the necessity of the family and defend ant No.5 is a

bona fid e p urchaser of the suit schedule p roperty for

valuab le consideration.

19. In my considered view, such a finding

record ed by the trial Court having reg ard to the

plead ings and the oral and documentary evidence

available on record does not suffer from any illegality

or irregularity, which calls for interference b y this

Court. Under the circumstances, both the points

framed for consideration are answered in the neg ative.

20. On an overall appreciation of the materials

on record , I find that the judgment and decree p assed

by the trial Court is sound and reasonab le. I find no

merit in this Regular First App eal and accordingly the

same is dismissed.

Sd/-

JUDGE

gab