Ramachandra S/O. Maredas Dasar vs Muttappa S/O. Ramappa Balihosur
2022 Latest Caselaw 791 Kant

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

      DATED THIS THE 18TH DAY OF JANUARY 2022

                        BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

               R.S.A.NO.5100/2013 (PAR)

BETWEEN

SRI RAMACHANDRA
S/O MAREDASDASAR
SINCE DECEASED BY HIS LRS.,

1A.   SMT.SUNANDA
      W/O LATE RAMACHANDRA DASAR,
      AGE : 59 YEARS, OCC: AGRICULTURE,
      R/O NAGASHETTIKOPPA, HUBBALLI,
      DIST; DHARWAD.

1B.   SRI MARIYAPPA
      S/O LATE RAMACHANDRA DASAR,
      AGE : 40 YEARS, OCC: AGRICULTURE,
      R/O NAGASHETTIKOPPA, HUBBALLI,
      DIST; DHARWAD.

1C.   SRI SANJEEV
      S/O LATE RAMACHANDRA DASAR,
      AGE : 38 YEARS, OCC: AGRICULTURE,
      R/O NAGASHETTIKOPPA, HUBBALLI,
      DIST; DHARWAD.

1D.   SMT.AKKAMAHADEVI
      D/O LATE RAMACHANDRA DASAR,
      W/O SURESH HOSAMANI, AGE : 59 YEARS,
      OCC: AGRICULTURE,
      R/O LAKKUNDI, TQ: DIST: GADAG.

1E.   SMT.MADHU POJJARI
      D/O LATE RAMACHANDRA DASAR,
      AGE : 34 YEARS, OCC: AGRICULTURE,
      R/O HEBBAL, TQ: MUDHOL,
                            2




       DIST: BAGALKOT.
                                          ... APPELLANTS
(BY SRI HANUMANTHAREDDY SAHUKAR, ADV.)

AND

      1.    SRI MUTTAPPA S/O RAMAPPA BALIHOSUR,
            AGE : 23 YEARS, OCC: STUDENT,
            R/O KUSUGAL TQ; HUBBALLI-580020.

      2.    MIS/PARAVVA D/O RAMAPPA BALIHOSUR,
            OCC: HOUSEHOLD WORK,
            R/O KUSUGAL TQ; HUBBALLI-580020.

      3.    SMT.NEELAVVA W/O GANGADHAR MULIMANI,
            AGE : 30 YEARS, OCC: AGRICULTURE,
            R/O KUSUGAL TQ; HUBBALLI-580020.

      4.    SRI RAMAPPA S/O ANDANAPPA BALIHOSUR,
            AGE : 54 YEARS, OCC: AGRICULTURE,
            R/O KUSUGAL TQ; HUBBALLI-580020.

      5.    SMT.SAVAKKA W/O RAMAPPA BALIHOSUR,
            AGE : 49 YEARS, OCC: STUDENT,
            R/O KUSUGAL TQ; HUBBALLI-580020.

      6.    SMT.ANASUYA W/O BASAVARAJ YADAGI,
            AGE : 29 YEARS, OCC: HOUSEWIFE,
            R/O JANGALIPETH, OLD-HUBBALLI-580020.
            HUBBALLI.
                                          ... RESPONDENTS
(BY SRI A.A.KALEBUDDE, ADV. FOR R.1 TO R.3)
(NOTICE TO RESPONDENT NO.4 TO 6 : 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 05.06.2010
PASSED IN O.S.NO.582/2008 BY THE LEARNED PRINCIPAL
CIVIL JUDGE (JR.DN.) HUBLI, WHICH IS CONFIRMED IN
R.A.NO.74/2010 DATED 31.10.2012 BY THE LEARNED II
ADDITIONAL SENIOR CIVIL JUDGE, HUBLI, DISMISSING THE
SUIT OF THE RESPONDENT NOS.1 TO 3 WITH COST
THROUGHOUT, IN THE INTEREST OF JUSTICE AND EQUITY.

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




                      : JUDGMENT :

Though this appeal is listed for admission, with

the consent of learned counsel appearing for both the

parties, the same is taken up for final disposal.

2. The captioned second appeal is filed by

unsuccessful defendant No.4 who is purchaser of joint

family ancestral property questioning the preliminary

decree passed by the Courts below in a suit for

partition and separate possession filed by the

respondents/plaintiffs.

3. Respondents/plaintiff Nos.1 to 3 filed a suit

for partition and separate possession in

O.S.No.582/2008 by contending that their father i.e.,

defendant No.1 is addicted to vices and is acting

adversely to the interest of the plaintiffs. Respondent

Nos.1 to 3 further specifically averred in the Plaint that

their father has alienated the suit land without there

being any legal necessity. It was also specifically

contended that the present appellant/defendant No.4

taking undue advantage of vices of their father has

managed to purchase the suit land fraudulently. On

these set of pleadings the respondents/plaintiffs

contended that the sale deed executed by their father

is not binding on their legitimate share and hence

prayed for allotting share in the suit schedule property

by effecting partition by meets and bounds.

4. The present appellant who was arrayed as

defendant No.4 contested the proceedings by filing

written statement. The present appellant/defendant

No.4 stoutly denied the entire averments made in the

Plaint and specifically contended that defendant No.1

has alienated the suit property as Kartha of joint

family consisting of defendant No.1 and plaintiffs and

therefore alienation is for legal necessity and it would

bind on the plaintiffs share also. On these set of

defences, the present appellant sought for dismissal of

the suit.

5. The trial Court having appreciated the oral

and documentary evidence has answered Issue No.1

in the negative by holding that the appellant has failed

to prove that the alienation was for legal necessity.

Consequently the Trial Court has proceeded to hold

that the suit schedule property is joint family ancestral

property and has proceeded to decree the suit

awarding 1/5th share each to the plaintiffs, in the suit

schedule property No.1.

6. Being aggrieved by the judgment and

decree of the Trial Court, the present appellant

preferred an appeal before the First Appellate Court.

The First Appellate Court on re-appreciation of oral

and documentary evidence has concurred with the

findings arrived at by the Trial Court. The Appellate

Court having independently assessed the ocular and

documentary evidence has also come to conclusion

that the appellant has failed to prove that alienation

done by the 1st defendant was for legal necessity. The

Appellate Court was also of the view that there is

absolutely no evidence indicating that the 1st

defendant as a Kartha of joint family and in the

interest of the joint family has alienated the suit

schedule property. Having concurred with the findings

of the Trial Court, the First Appellate Court however

found that the quantification is not done correctly by

the Trial Court. Having regard to the relationship

between the plaintiffs and defendants, the Appellate

Court was of the view that the widow namely Savakka

who was also alive on the date of filing of the suit

would also be entitled to for the share. On this short

point, the Appellate Court modified the preliminary

decree by granting 1/6th share each to the plaintiffs.

7. Heard learned counsel appearing for the

appellant and learned counsel appearing for the

respondents. Perused the judgments under challenge.

8. The present appellant has admittedly

purchased a joint family ancestral property. The

alienation is by the 1st defendant and defendant Nos.2

to 4 are not the signatories to the sale deed. However,

the plaintiff No.1 and 2 who are sons of defendant

No.1 have independent right and they have not joined

the defendant No.1. Therefore plaintiff Nos.1 and 2

being non alienating members and who have got

independent share are not bound by the alienation

done by defendant No.1. Both the Courts below have

concurrently held that the sale was not for legal

necessity and therefore the findings arrived at by the

Trial Court in regard to legal necessity while dealing

with Issue No.1 cannot be reexamined under Section

100 of CPC. Such a recourse is not available to this

Court while entertaining appeal under Section 100 of

CPC. If issue No.1 is answered in the negative, the

consequences have to follow and the sale deed

executed by defendant No.1 would not bind on the

plaintiffs' share. I do not find any illegalities and

infirmity in the judgments of the Courts below. No

substantial question of law arises for consideration.

The appeal is devoid of merits and accordingly the

same stands dismissed.

Sd/-

JUDGE EM