Smt. Laxmi W/O Narayan Banglore vs Shri. Ishwar Basavanna Bagewadi
2022 Latest Caselaw 504 Kant

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH AT
                    DHARWAD

       DATED THIS THE 12TH DAY OF JANUARY, *2022

                           BEFORE

 THE HON'BLE MR.JUSTICE SACHIN SHANKAR MAGADUM

               R.S.A.NO.100884/2017 (DEC)

BETWEEN :

1.     SMT. LAXMI
       W/O NARAYAN BANGLORE
       SINCE DECEASED BY HER LRS.

1(A)   SMITA
       W/O MANJUNATHA SHETTY PV,
       AGE : 34 YEARS,
       OCC: HOUSEHOLD,
       R/O HOUSE NO.736,
       12TH WARD POOJARI LAND,
       MAIN BAZAAR
       NEAR NAGRESHWAR TEMPLE,
       TQ: HOSPETH,
       DIST: BELLARY-581 301.

1(B)   SHILPA
       D/O NARAYAN BANGALORE,
       AGE : 31 YEARS,
       OCC: HOUSEHOLD,
       R/O SONAR GALLI,
       HALIYAL-581329,
       TQ: HALIYAL, DIST.U.K.

1(C)   SHRUTI
       D/O NARAYAN BANGALORE,
       AGE : 28 YEARS,
       OCC: HOUSEHOLD,
       R/O SONAR GALLI,
       HALIYAL-581329,
       TQ: HALIYAL, DIST.U.K.

2.     SHRI NARAYAN

       * Corrected vide chamber order dated 7.3.2022.
                            Sd/-
                           (SSMJ)
                               2




        S/O VENKATESH BANGALORE,
        AGE : YEARS,
        OCC: AGRICULTURE.
        R/O SUBHAS ROAD, HALIYAL,
        U.K.-581329
                                          ... APPELLANTS
(BY     SRI BASANNA N.PATTEKAR AND
        SRI H.G.CHIKKAREDDER ADVTS.)

AND :

1.      SHRI ISHWAR
        BASAVANNAPPA BAGEWADI,
        AGE: 60 YEARS,
        OCC: AGRICULTURE,
        R/O: LINGANNAMATH,
        TQ: KHANAPUR,
        DIST: BELAGAUM.

2.      SMT.PARVATAMMA
        W/O ULIVEPPA DHARWADKAR,
        AGE: YEARS,
        OCC: AGRICULTURE,
        R/O: KUMBARGALLI,
        TQ: HALIYAL, (U.K)-581329.

3.      SMT.YELLAVVA
        W/O GADIGEPPA GANIGER
        AGE: YEARS, OCC: AGRI,
        R/O: HUDED GALLI,
        SOUDATTI-591126,
        DIST: BELGAUM.

4.      SMT.CHANDRAKALA
        W/O ISHWAR BAGEWADI
        AGE: YEARS,
        OCC: HOUSEHOLD,
        TQ: HALIYAL DIST: (U.K)-581329.

5.      SMT. NEELAVVA
        W/O PARAPPA DHARWADKAR,
        AGE: YEARS,
        OCC: HOUSEHOLD,
        KAVALGERI-580112,
        TQ. AND DIST: DHARWAD.
                             3




6.   SRI. GULEPPA
     S/O PARAPPA DHARWADKAR,
     AGE: YEARS, OCC: COOLIE,
     KAVALGERI-580112,
     TQ AND DIST: DHARWAD.

7.   SHRI KALMESH
     S/O PARAPPA DHARWADKAR,
     AGE: YEARS,
     OCC: COOLIE,
     KAVALGERI-580112,
     TQ, AND DIST: DHARWAD.

8.   SRI. ALLABAX
     S/O GUDUSAB BEPARI,
     AGE: YEARS,
     OCC: AGRICULTURE,
     R/O: MEDAR GALLI HALIYAL,
     TQ: HALIYAL(U.K)-581329.

9.   SHRI SHANKAR
     MASANU TAMBURKAR,
     AGE: YEARS,
     OCC: AGRICULTURE,
     R/O: B.K.HALLI, TQ: HALIYAL
     TQ: HALIYAL(U.K)-581329.
                                          ...RESPONDENTS

(BY SRI VISHWANATH HEGDE, ADV. FOR C/R.1)
(NOTICE TO RESPONDENT NOS.2 TO 4, 8 & 9 : SERVED)
(NOTICE TO RESPONDENT NOS.5 TO 7 : HELD SUFFICIENT)

     THIS APPEAL IS FILED UNDER 100 OF THE CODE OF
CIVIL PROCEDURE, 1908 PRYING THIS COURT TO SET ASIDE
THE JUDGMENT AND DECREE DATED 12.09.2017 PASSED IN
R.A.NO.5008/2017 BY THE I ADDL. DISTRICT AND SESSIONS
JUDGE, U.K.KARWAR SITTING AT SIRSI AND JUDGMENT AND
DECREE DATED 25.08.2010 PASSED IN O.S.NO.62/2007 BY THE
CIVIL JUDGE (JR.DN.) YELLAPUR SITTING AT HALIYAL.


     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
                                  4




                       : JUDGMENT :

The defendant Nos.7 and 8 who are claim to be

the purchasers of the property from the mother of

respondent No.1-plaintiff are before this Court

questioning the concurrent judgment and decrees of

the Courts below in decreeing the suit filed by the

respondent No.1/plaintiff.

2. Facts leading to the above said case are as

follows:

Respondent No.1/plaintiff filed a suit for partition

and separate possession in O.S.No.62/2007 by

specifically contending that his mother Ulivevva had

legitimate share in the properties owned by her

parents and that she died intestate. Respondent

No.1/plaintiff further contended that the property

bearing block No.41 was originally tenanted property

and occupancy rights was granted in respect of

property to one Uliveppa Dharwadkar, Parappa

Dharwadkar and Ulivevva Bagevadi who is none other

than the mother of respondent No1/plaintiff. He

further contended that the above said three persons

were having 1/3rd share each in the suit schedule

property and that their mother died intestate and she

is survived by four sons. Respondent No.1/plaintiff

further contended that as a manager of the branch of

Ulivevva, he is entitled for 1/3rd share in the suit

schedule property.

3. The present suit is filed by alleging that the

present appellant/defendant Nos.7 and 8 are asserting

right over the entire extent on the basis of sale deed

executed by deceased Uliveppa. Respondent

No.1/plaintiff contended that Uliveppa who is none

other than the brother of his mother had no absolute

right in the suit schedule property and in absence of

division in the family, he had no absolute right to

alienate the suit property in favour of appellants

herein. When a request was made to effect partition

with meets and bounds, a false contention was taken

by respondents that there is already severance in the

family and this compelled to the present

respondent/plaintiff to seek partition by meets and

bounds in the suit schedule properties.

4. The present appellants and other

defendants were contested the proceedings.

5. The Trial Court on appreciation of oral and

documentary evidence, answered Issue Nos.1 to 4 in

the affirmative and held that respondent No.1/plaintiff

has proved that the suit schedule property was

tenanted property and occupancy right was granted in

favour of Uliveppa Dharwadkar, Parappa Dharwadkar

and Smt.Ulivevva Bagevadi to an extent of 1/3rd share

and therefore held that respondent No.1/plaintiff

being Class-I heir of deceased Ulivevva is entitled for

1/3rd share in the suit schedule property. The Trial

Court on appreciation of oral and documentary

evidence also held that the alleged sale deed executed

in favour of defendant Nos.7 to 10 is not binding on

respondent No.1/plaintiff's share. Issue No.5 relates

as to as whether the present appellants are bonafide

purchasers without notice. The said issue was also

answered in the negative holding that, the appellants

have failed to establish that they are the bonafide

purchasers without notice.

6. The First Appellate Court on re-appreciation

of oral and documentary evidence has concurred with

the findings of the Trial Court and has recorded a

categorical finding that, the present appellants have

failed to establish that they have purchased 1/3rd

share of Ulivevva and on re-appreciation of oral and

documentary evidence, the First Appellate Court was

of the view that the materials placed on record reveals

that the appellants have purchased the property from

one Ulivevva Basappa Ganiger whereas the plaintiff's

specific contention is his mother's name is Ulivevva

W/o Basavanneppa Bagevadi. The Appellate Court

further held that the appellants have succeeded in

proving that Uliveppa Dharwadkar has sold his 1/3rd

share, however, the evidence on record does not

indicate that Hulivevva wife of Basavanneppa

Bagevadi has also alienated his 1/3rd share the suit

property. Therefore, the Appellate Court was also of

the view that there is absolutely no evidence on

record to indicate that it was plaintiff's mother who

agreed to sell the suit schedule property and therefore

proceeded to hold that the alleged sale deed secured

by appellants from one Ulivevva Ganiger would not

create any right in favour of present appellants herein.

On these set of grounds, the appeal filed by present

appellants came to be dismissed thereby confirming

the judgment and decree of the Trial Court. Against

these concurrent judgments and decrees of the Courts

below, the appellants are before this Court.

7. Learned counsel appearing for the

appellants kept on harping that the suit filed by

respondent No.1/plaintiff is not at all maintainable. He

would submit to this Court that respondent

No.1/plaintiff has no locus-standi to question the

alienation made by his maternal uncle. He would

further submit to this Court that the plaint does not

reveal cause of action. He would further contended

that the mother of plaintiff has already alienated the

suit schedule property and it was well within her right

to dispose of the property as it was her self acquired

property. He would further submit to this Court that

there is absolutely no pleading regarding alienation by

his mother. On these set of grounds, he would submit

to this Court that both the Courts have not examined

the case of the appellants/defendants in a right

perspective and therefore would give rise to

substantial question of law.

8. To buttress his argument he has also

placed reliance on the following judgments:

(D.R.Rathna Murthy Vs. Ramappa.)

2. (2012) 8 Supreme Court Cases 148 (Union of India Vs. Ibrahim Uddin and another)

3. (2017) 9 Supreme Court Cases 183 (State of Uttarakhand and another Vs. Mandir Sri Laxman Sidh Maharaj)

9. Per contra learned counsel appearing for

respondent No.1/plaintiff would submit to this Court

that there is a concurrent finding of the Courts below

to the effect that, there is absolutely no evidence

indicating that it is the plaintiff's mother who had

alienated the suit schedule property. Therefore both

the Courts were justified in decreeing the suit. He

would further submit to the Court that the 1st

respondent's mother has not at all alienated the suit

property. This aspect is not established by the

appellants/defendants by producing cogent and

clinching evidence.

10. Heard learned counsel appearing for the

appellants and learned counsel appearing for

respondent No.1/plaintiff.

11. The short point that would arise for

consideration as to whether the appellants/defendants

have succeeded in establishing that the plaintiff's

mother has alienated her 1/3rd share for valuable

consideration? My answer to the said point is, 'no'.

Having taken a contention that plaintiff's mother has

alienated her 1/3rd share for valuable consideration,

the present appellants/defendants were required to

produce cogent and clinching rebuttal evidence. The

document which is set up by appellants/defendants

itself, goes against the claim made by the appellants

herein. Both the Courts have extensively dealt with

controversy between the parties. In the sale deed the

vendor's name is shown as Ulivevva W/o Basappa

Ganiger. It is not in dispute that the plaintiff's mother

name is Ulivevva W/o Basavanneppa Bagevadi. DW.2

in his cross-examination has admitted in unequivocal

terms that he has not purchased the property from

Ulivevva Bagevadi. He has further stated in cross-

examination that he has not acquainted with Ulivevva

Bagevadi. His further cross-examination reveals that

he has admitted to the effect that he had never

enquired the plaintiff about his parentage.

12. He further specifically pleaded ignorance

that he is not aware that Ulivevva Ganiger or his

vendors have any children or not. He has gone to the

extent of deposing before the court that he is not

aware whether Ulivevva married or not. In the cross-

examination, he further stated that he has seen

Ulivevva Ganiger only once that too at the time when

she put her signature on Exs.D2 and D3.

13. The further admission in the cross-

examination wherein he has admitted that Ulivevva

Bagewadi is not party to Exs.D2 and D3 would clinch

the issue and the controversy would be virtually put to

rest. All these significant details are dealt by the trial

court and the first appellate court. There is concurrent

finding of both the courts below to the effect that

alienation as claimed by the appellants is not by the

mother of respondent No.1/plaintiff. These concurrent

findings are based on material on record. Therefore,

this court is of the view that the disputed question of

facts cannot be gone into and tested and re-

appreciated afresh under Section 100 of CPC. Such a

jurisdiction and exercise is uncalled for under Section

100 of CPC. The Hon'ble Apex Court in catena of

judgments has repeatedly held that concurrent

findings of the courts on disputed questions of fact if

they are based on the relevant evidence on record

cannot be re-examined by the High Court under

Section 100 of CPC. In catena of judgments, the

Hon'ble Apex Court has gone to the extent of holding

that, even if a question of law is involved, even such

question of law cannot be examined having recourse

to Section 100 of CPC. It is only under exceptional

cases where a substantial question of law is made out,

which goes to the root of the case and dislodges the

very course of conclusion that is arrived at by the

courts below, in such cases, the High Court may

interfere by exercising power conferred under Section

100 of CPC.

14. Much of the time of this court is consumed

by the counsel appearing for the appellants who not

only argued in the first session and took it to the

second session after lunch. Though this court

repeatedly requests him to cut down his arguments

and make out a case for admission to appraise this

court as to what are the substantial questions of law

that would arise in the present case on hand.

However, he went on arguing on facts. Wastage of

court time cannot be compensated. The courts are

already overburdened and if the courts are compelled

to hear a frivolous appeal by consuming valuable

time, this court is compelled to have recourse to

Section 35 of CPC and impose exemplary cost. In the

present case on hand, the purchasers are virtually

trying to dictate as to what is the nature of the

properties. Admittedly, the appellants' vendor has not

questioned preliminary decree. Both the courts have

concurrently held that the sale deed which is set up by

the appellants has nothing to do with the plaintiff's

mother. Though this court appraised the counsel for

the appellant that there is no need to challenge the

sale deed in the light of the principles laid down by

this court in the case of Ganapati Shantaram

Bhosale & Another V. Ramachandra Subbarao

Kulkarni1, the counsel for the appellants insisted and

kept persuading this court and went on arguing the

case not only in the first session but on the second

session also. Therefore, I am of the view that this is a

fit case to impose cost having regard to the conduct of

the parties.

15. The grounds urged in the appeal memo do

not make out any substantial question of law. The

grounds urged in the appeal are devoid of any merits

and would not displace the conclusion arrived at by

ILR 1985 1115

both the courts below. In that view of the matter, the

appeal is dismissed by imposing cost of Rs.25,000/-.

Sd/-

JUDGE EM/MBS