Karnataka High Court
Ravi S/O Veerappa Hosalli vs Basanagouda S/O Shivanagouda ... on 10 January, 2022
Bench: Sachin Shankar Magadum
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A.NO.100709 OF 2014(PAR)
BETWEEN:
1. RAVI S/O VEERAPPA HOSALLI
AGE ABOUT 38 YEARS
OCC: AGRICULTURE,
R/O HIREMORAB, TQ: HIREKERUR,
DIST: HAVERI-581110.
2. LAKSHMIKANTHA S/O VEERAPPA HOSALLI,
AGE ABOUT 36 YEARS,
OCC: AGRICULTURE,
R/O HIREMORAB, TQ: HIREKERUR,
DIST: HAVERI-581110.
...APPELLANTS
(BY SRI.S.G.KADADAKATTI & SRI.LINGESH V.KATTIMANI, ADVS.)
AND:
1. BASANAGOUDA S/O SHIVANAGOUDA
MUDIGOUDAR,
AGE ABOUT 44 YEARS,
OCC: AGRICULTURE,
R/O HIREMORAB, TQ: HIREKERUR,
DIST: HAVERI-581110.
2. SHAMBHUGOUDA S/O SHIVANAGOUDA
MUDIGOUDAR, AGE ABOUT 38 YEARS,
OCC: AGRICULTURE, R/O HIREMORAB,
TQ: HIREKERUR, DIST: HAVERI-581110.
2
3. HEMAVATHI W/O CHAMANAGOUDA PATIL,
AGE ABOUT 45 YEARS,
OCC: AGRICULTURE & HOUSEHOLD WORK,
R/O DEEVAGIHALLI, TQ: HIREKERUR,
DIST: HAVERI-581110.
4. KUSUMA W/O SHANKARAPPA GUBBI,
AGE ABOUT 41 YEARS,
OCC: AGRICULTURE & HOUSEHOLD WORK,
R/O GUDDADABEVINAHALLI,
TQ: RANEBENNUR, DIST: HAVERI-581110.
5. RENUKA W/O RAJASHEKHARAPPA
CHANNALLI, AGE ABOUT 34 YEARS,
OCC: AGRICULTURE & HOUSEHOLD WORK,
R/O KADENANDIHALLI, TQ: SHIKARIPUR,
DIST: SHIMOGA-577427.
...RESPONDENTS
(BY SRI.N.P.VIVEKMEHTA, ADV. FOR R4,
R2 TO R5 ARE SERVE REMAIN UNREPRESENTED)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC SEEKING
TO SET ASIDE THE JUDGMENT AND DECREE DATED 26.09.2014
PASSED BY THE COURT OF SENIOR CIVIL JUDGE AND JUMFC,
HIREKERUR IN R.A.NO.19/2012 AND CONFIRM THE JUDGMENT AND
DECREE DATED 03.08.2012 PASSED BY THE COURT OF CIVIL JUDGE
AND JMFC, HIREKERUR IN O.S.NO.172/2009.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
The captioned second appeal is filed by defendants 6
and 7 questioning the judgment and decree dated
passed in R.A.No.19/2012 wherein the first appellate court
allowed the appeal and thereby has set aside the judgment
and decree passed in O.S.No.172/2009 an has
consequently decreed the suit by declaring that
respondents/plaintiffs are entitled for half share in the suit
schedule properties.
2. The facts leading to the case are as under:
Plaintiff and defendant Nos.1 and 3 to 5 are the
children of the deceased Shivanagouda. Defendant No.2 is
the widow of deceased Shivanagouda. Plaintiff filed suit for
partition and separate possession in O.S.No.172/2009 and
claimed that suit schedule properties are joint family
ancestral properties. The plaintiff further contended that
defendant Nos.3 to 5 who are his sisters have received
their share by way of jangam property of the family.
Placing on the family partition during the lifetime of his
father Shivanagouda, plaintiff claims that he is entitled for
half share in schedule-B properties, which was jointly
allotted to plaintiff and defendant No.2. Apart from the
joint family properties their father Shivanagouda also
owned properties bearing Survey No.109/5A measuring 4
acres 6 guntas and Survey No.123/8 measuring 1 acre 10
guntas. It is the specific case of the plaintiff that their
father effected partition of the joint family properties along
with his brothers way back in 1960. The property bearing
Survey No.109 measuring 1 acre 72 guntas and property
bearing Survey No.123/8 measuring 1 acre 10 guntas and
'B' schedule property were allotted to the share of
deceased Shivanagouda.
3. Schedule B1 and item Nos.1 and 2 properties
were jointly allotted to the share of plaintiff and defendant
No.1. On these set of pleadings, the plaintiff filed the suit
for partition and separate possession by specifically
contending that the plaintiff and defendant No.1 are joint
owners and therefore, prayed to allot his legitimate share
in the suit schedule properties. The cause of action to file
the present suit was when defendant No.1 highhandedly
got his name mutated in respect of Schedule B1 property
measuring 3 acres 16 guntas by creating false documents.
4. The deceased plaintiff-Basanagouda in support
of his contention let in ocular evidence by examining
himself as P.W.1 and produced documentary evidence vide
Exs.P1 to P8. The present appellants did not contest the
proceedings and no written statement was filed.
5. The trial Court having assessed the oral and
documentary evidence dismissed the suit on two counts.
The trial Court was of the view that since the plaintiff has
admitted in unequivocal terms in the plaint that there was
partition between himself and father of defendants 1 to 5,
question of seeking partition in the present suit would not
arise. The trial Court placing reliance on the judgment
rendered by this Court in the case of Chinnappa Reddy
.vs Nanjundappa1 was of the view that once the partition
is effected between the members of Hindu undivided family
by their own volition, the family members cannot seek
reopening unless it is shown that the said partition was
obtained by coercion, misrepresentation or undue
influence. The trial Court was of the view that the plaintiff
has not placed on record any documentary evidence
indicating that defendant No.1 indulged in playing fraud
against the plaintiff.
6. The second ground on which the trial Court has
proceeded to dismiss the suit is that the plaintiff has filed
the present suit seeking the relief of partition without
seeking cancellation of the sale deed executed by
defendant No.1 on 10.2.2001. Therefore, the learned trial
Judge was of the view that the present suit filed by the
plaintiff without seeking the relief of cancellation of sale
deed is not at all maintainable. On these two counts, the
2011 HCR 619
learned Judge has proceeded to dismiss the suit even
though there is no contest by the present appellants.
7. Feeling aggrieved by the judgment and decree
of the trial Court, the original plaintiff Basanagouda
preferred an appeal before the first appellate Court. The
first appellate Court on re-appreciation of the oral and
documentary evidence has held that the finding of the trial
Court that the plaintiff cannot maintain the partition suit
without challenging the sale deed executed by defendant
No.1 is perverse and contrary to the dictum laid down by
this Court in the case of Vadde Sanna Hulugappa and
others vs. Vadde Sanna Hulufappa(deceased)2
wherein this Court has held that if plaintiffs are not parties
to the alienation, it is not necessary to seek cancellation of
sale deed and as such they can maintain a suit for partition
and separate possession.
ILR 1998 KAR 2127
8. Being aggrieved by the judgment and decree of
the first appellate Court, defendants 6 and 7 are before this
Court questioning the judgment and decree of the first
appellate Court.
9. Heard the learned counsel for the appellants and
the learned counsel appearing for respondents. Perused
the judgment under challenge and also the judgment
rendered by the trial Court.
10. The points that would arise for consideration
before this Court are:
"1.Whether the plaintiff can maintain
the present suit for partition and separate
possession without questioning the sale
deeds executed by defendant No.1?
2. Whether the plaintiff has admitted
that there was a partition between himself
and his brother who is arrayed as
defendant No.1?
11. The first question as to whether the plaintiff can
maintain a suit for partition and separate possession
without seeking cancellation of the sale deed, I am of the
view that the said issue is no more resintegra. This Court
in the case of Ganapati Santaram Bhosale .vs.
Ramachandra Subbarao Kulkarni had an occasion to
deal with an identical issue and this Court was of the view
that where joint family member meddles with the property
and sells the joint family property, it would be suffice for
the non-alienating members to simply file the suit for
partition and separate possession and there is no need to
challenge the said alienation done by other members. This
view still holds the field and therefore, the finding recorded
by the first appellate Court to the effect that the plaintiff
can maintain the suit for partition without questioning the
alienation is in accordance with law and the same does not
suffer from any infirmities or illegalities. The fundamental
principle in respect of coparcener property or joint family
ILR 1985 KAR 1115
property is that the joint family member has a pre-existing
right in a joint family ancestral property. Every member of
the joint Hindu family has an independent right and
therefore, if there is any alienation by any one of the joint
family member, it would be sufficient to seek partition by
non-alienating members. The question of challenging or
seeking cancellation of sale deed would not arise because
every joint family member has an independent right. At
the most, the non-alienating members can seek a
declaration that such alienation do not bind their legitimate
shares. Therefore, the finding recorded by the first
appellate Court is strictly in consonance with the dictum
laid down by this Court in Vadde Sanna Hulugappa's
case and Ganapati Santaram Bhosale's case Head
Note'B"(supra).
12. The second question which needs to be
examined is whether the plaintiff has admitted in the plaint
that there was severance in the family during the lifetime
of plaintiff's father. On perusal of the pleadings in the
plaint more particularly Para(6), I would find that the
plaintiff has specifically averred that his father effected
partition in 1989 and in the said partition, the suit schedule
properties were jointly allotted to plaintiff and defendant
No.1. However, the learned trial Judge has totally misread
the pleadings in the plaint and has proceeded on the wrong
assumption that the plaintiff has admitted partition which is
factually incorrect. It would be useful to cull out Para (6)
of the plaint which reads as under:
"ªÁ¢ ªÀ 1 jAzÀ 5£Éà ¥ÀæwªÁ¢AiÀÄgÀ WÀgÁuÉÃzÀ ªÀÄÆ® ¥ÀÄgÀĵÀ
²ªÀ£ÀUËqÀ vÀAzÉ §gÀªÀÄUËqÀ ªÀÄÄ¢UËqÀæ EªÀgÀÄ vÀ£Àß ¸ÀºÉÆÃzÀgÀgÉÆA¢UÉ ªÀ
aPÀÌ¥ÀàgÉÆA¢UÉ 1960 £Éà ¸Á°£À°è »¸Éìà DzÀ PÁ®PÉÌ »gÉÃPÀgÀÆgÀÄ vÁ®ÆPÀÄ,
»gɪÉÆgÀ§ UÁæªÀÄzÀ j ¸À £ÀA. 109/5, PÉëÃvÀæ 7 JPÀgÉ 22 UÀÄAmÉ, ¸ÀzÀj
UÁæªÀÄzÀ j ¸À £ÀA.123/8, PÉëÃvÀæ 01 JPÀgÉ 10 UÀÄAmÉ ºÁUÀÆ C£ÀĸÀÆa '§'
D¹ÛAiÀÄ ¸ÀzÀjAiÀĪÀgÀ »¸ÉìÃPÉÌ §A¢zÀÄÝ EgÀÄvÀÛzÉ. ªÀÄÆ®¥ÀÄgÀĵÀ ²ªÀ£ÀUËqÀ£ÀÄ
1989 gÀ°è ªÀÄPÀ̼ÉÆAzÉUÉ »¸Éìà ªÀiÁrPÉÆAqÀ ¸ÀªÀÄAiÀÄzÀ°è C£ÀĸÀÆa '§' 1
ªÀÄvÀÄÛ 2£Éà D¹ÛUÀ¼ÀÄ ªÁ¢ ªÀÄvÀÄÛ 1£Éà ¥ÀæwªÁ¢AiÀÄgÀ »¸ÉìÃPÉÌ ¸ÁªÀÄÆ»PÀªÁV
§A¢zÀÄÝ EgÀÄvÀÛzÉ."
13. On a bare perusal of the pleadings, it is clear
that the plaintiff has not at all admitted that there was
severance in the family. On the contrary, the plaintiff has
specifically contended that in the family partition effected
in 1989 by their father, the suit schedule properties were
jointly allotted to plaintiff and defendant No.1. If these
facts are taken into consideration, then I am of the view
that the finding of the trial Court that plaintiff has admitted
that there was severance in the family is factually
incorrect. I am of the view that the judgment and decree
passed by the first appellate Court in setting aside the
judgment and decree of the trial Court is in accordance
with law and same does not suffer from any illegality or
infirmity. No substantial question of law arises for
consideration in the present case on hand.
Accordingly, the appeal is dismissed.
Sd/-
JUDGE
*Alb/-
