Mallappa S/O Late Saibanna ... vs Revansidappa And Ors
2022 Latest Caselaw 8147 Kant

                            1


             IN THE HIGH COURT OF KARNATAKA
                    KALABURAGI BENCH

           DATED THIS THE 6TH DAY OF JUNE 2022

                         BEFORE

       THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR


                    RSA No.200105/2020

BETWEEN:

MALLAPPA
S/O LATE SAIBANNA MUCHKHED,
AGE: 61 YEARS,
OCC: AGRICULTURE,
R/O PANEGAON,
TQ. & DIST. KALABURAGI.
                                              ... APPELLANT

(BY SRI.HARSHAVARDHAN R.MALIPATIL, ADVOCATE)

AND:

1.     REVANSIDAPPA
       S/O LATE SAIBANNA MUCHKHED,
       AGE: 66 YEARS, OCC: AGRICULTURE,
       R/O PANEGAON,
       TQ. & DIST. KALABURAGI-585102.

       SMT. GANGAMMA
       W/O LATE SAIBANNA MUCHKHED
       SINCE DIED THROUGH, LRS.

2.     SMT. SURMADEVI
       D/O LATE SAIBANNA MUCHKHED,
       W/O LATE SHIVASHARANAPPA ASTAGI,
       AGE: MAJOR, OCC: HOUSEHOLD,
                            2


     R/O PANEGAON,
     TQ. & DIST. KALABURAGI-585102.

3.   SMT. KASTURIBAI
     D/O LATE SAIBANNA MUCHKHED,
     W/O LATE SIDARAM BALA,
     AGE: 73 YEARS, OCC: HOUSEHOLD,
     R/O AURAD, TQ. & DIST. KALABURAGI
     NOW PRESENTLY R/O
     PANEGAON, KALABURAGI.

4.   ERANNA
     S/O LATE SAIBANNA MUCHKHED,
     AGE: 73 YEARS, OCC: AGRICULTURE,
     R/O PANEGAON,
     TQ. & DIST. KALABURAGI-585102.

     DEVINDRAMMA
     S/O LATE SAIBANNA MUCHKHED,

     SINCE DIED, THROUGH HIS LRS

5.   SHRISHAILBAI
     W/O LATE DEVINDRAPPA MUCHKHED,
     AGE: 72 YEARS,
     OCC: HOUSEHOLD & AGRICULTURE,
     R/O PANEGAON,
     TQ. & DIST. KALABURAGI-585102.

6.   MANIKAPPA
     S/O LATE DEVINDRAPPA MUCHKHED,
     AGE: 46 YEARS, OCC: AGRICULTURE,
     R/O PANEGAON,
     TQ. & DIST. KALABURAGI-585102.

7.   CHANDRASHEKAR
     S/O LATE DEVINDRAPPA MUCHKHED,
     AGE: 36 YEARS, OCC: AGRICULTURE,
     R/O PANEGAON,
     TQ. & DIST. KALABURAGI-585102.
                               3


8.    NAGESH
      S/O LATE DEVINDRAPPA MUCHKHED,
      AGE: 33 YEARS, OCC: AGRICULTURE,
      R/O PANEGAON,
      TQ. & DIST. KALABURAGI-585102.

9.    SHARANAMMA W/O ANNEPPA
      D/O LATE DEVINDRAPPA MUCHKHED,
      AGE: 53 YEARS, OCC: HOUSEHOLD,
      R/O NAGOOR,
      TQ. & DIST. KALABURAGI-585102.

10.   VIJAYLAXMI W/O BHARAT
      D/O LATE DEVINDRAPPA MUCHKHED,
      AGE: 50 YEARS,
      OCC: HOUSEHOLD & AGRICULTURE,
      R/O PANEGAON,
      TQ. & DIST. KALABURAGI-585102.
                                             ... RESPONDENTS

(BY SRI.SHARANABASAPPA K.BABSHETTY, ADVOCATE FOR C/R1)

     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, PRAYING TO ALLOW THIS APPEAL WITH
COST AND SET ASIDE THE JUDGMENT AND DECREE IN
R.A.NO.76 OF 2018 ON THE FILE OF PRL. SENIOR CIVIL JUDGE
AT KALABURAGI, DATED 09.01.2020 AND ALSO THE
JUDGMENT AND DECREE OF THE LEARNED PRL. CIVIL JUDGE
AND JMFC., KALABURAGI, DATED 24.07.2018 IN OS NO.465 OF
2012, AND CONSEQUENTLY DISMISS THE SUIT OF THE
PLAINTIFFS.

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


                         JUDGMENT

This appeal is filed by Defendant No.4 in OS No.465/2012

challenging the judgment and decree dated 24.07.2018 passed

by the principal Civil Judge and JMFC at Kalaburagi ('trial Court'

for short), which is again confirmed by the Judgment dated

09.01.2020 passed by the Principal Senior Civil Judge at

Kalaburagi ('First Appellate Court' for short) in RA No.76/2018.

2. For the sake of convenience, the parties herein are

referred as per the ranks occupied by them before the trial

Court.

3. The brief facts of the case are that, the plaintiff has

filed a suit for partition and separate possession of 1/4 th share

in the suit schedule property, which is the land bearing Sy. No.

144/1 measuring 8 acres 35 guntas said to have been owned

by his father Saibanna Muchkhed ('Saibanna' for short) and

defendant No.1 is the mother of the plaintiff, while defendant

Nos. 2 to 4 are the sons of Saibanna. The plaintiff filed a suit

claiming 1/4th share in the suit schedule properties on the

ground that the defendant No.1 has got mutated her name to

the suit schedule property and tried to create third party

interest and later on, the name of defendant No.4 came to be

entered. Hence, he has sought for partition and separate

possession.

4. The defendant No.4 has seriously contested the suit

and set-up a defence that he has agreed to purchase the suit

schedule property for consideration of Rs.1.00 Lakh and got

executed an agreement of sale dated 28.05.1992 and he is a

prospective purchaser.

5. On the basis of the rival pleadings, the trial Court

has framed the following issues:-

i) Whether the plaintiff proves that the suit properties are joint family properties of plaintiff and defendants?

ii) Whether the plaintiff further proves that he is entitled 1/4th share in the suit properties?

iii) Whether the defendant No.4 proves that he has purchased the suit property for consideration of RS.1,00,000/- and husband of defendant No.1 executed on 28.05.1992?

iv) Whether there is no cause of action to the plaintiff for filing the present suit?

v) Whether the plaintiff is entitled to the relief as sought for?

vi) What order or decree?

6. The trial Court after appreciating the evidence, has

answered Issue Nos.1, 2 and 5 in partly affirmative, while

Issue Nos.3 & 4 regarding agreement of sale, are answered in

the negative and ultimately, the suit came to be decreed by

awarding 1/6th share to the plaintiff, defendant No.1(a),

defendant No.1(b), defendant No.2, LRs of defendant No.3 and

defendant No.4.

7. Being aggrieved by this judgment and decree

passed by the trial Court, the appellant/defendant No.4 has

filed an appeal in RA No.76/2018 before the First Appellate

Court. The First Appellate Court has framed the following points

for consideration:-

i) Whether in given facts and circumstances of the case, the trial Court has erred in coming to conclusion suit landed and house properties are absolute properties of deceased Saibanna?

ii) Whether in given facts and circumstances of the case, the trial Court has erred in coming to conclusion the defendant No.4/appellant has failed to prove agreement of sale in respect of suit landed and suit house properties as per Ex.D31?

iii) Whether in given facts and circumstances of the case, the trial Court has erred in coming to conclusion that plaintiff cannot claim ownership and possession of suit land and house properties based on agreement dated 28.5.1992 as per Ex.D1?

iv) Whether in given facts and circumstances of the case, the findings of trial Court are justified wherein it come to conclusion, after death of Saibanna all his Class-I legal heirs are entitled for equal share in suit land and house properties?

v) Whether judgment and decree passed by trial Court has to be interfered in present appeal?

8. The First Appellate Court after hearing the

arguments and perusing the records, answered Points No.1, 2 &

5 in negative, while Points No. 3 & 4 are answered in the

affirmative and ultimately dismissed the appeal by confirming

the judgment and decree of the trial Court.

9. Heard the arguments advanced by both the

counsels and perused the records of both the Courts below.

10. It is evident from the records that, the suit

schedule properties are absolute properties of Saibanna.

Further, defendant No.4/appellat herein has also admitted

this fact. But, he has put-forward the defence that,

Saibanna has agreed to sell the suit schedule properties in

his favour by executing an agreement of sale dated

28.05.1992. The trial Court and the First Appellate Court

after appreciating the oral and documentary evidence have

come to a conclusion that the agreement is not proved by

the defendant No.4/appellant herein and the agreement of

sale cannot confer any interest in favour of defendant

No.4/appellant herein. Admittedly, mere agreement of sale

does not confer any right, title or interest in favour of a

party and it only gives a right to enforce the contract.

Further, all along, it is alleged that the agreement is dated

28.05.1992. But, the suit for partition came to be filed in

the year 2012, wherein the agreement of sale in favour of

defendant No.4/appellant herein came to be disputed. After

decreeing the suit, defendant No.4/appellant herein has filed

RA No.76/2018, which also came to be dismissed by

confirming the judgment and decree passed by the trial

Court. The agreement of sale was not enforced by the

plaintiff for a long period of more than 20 years and under

such circumstances, the plaintiff cannot enforce the contract

after such a long period. Further, admittedly, defendant

No.4 is the son of executant and what are the compelling

circumstances to execute the agreement are also not

forthcoming.

11. Further, the learned counsel for the appellant has

fairly admitted that the suit for specific performance of the

contract is also not filed by defendant No.4/appellant herein.

Further, he has also not filed any counter claim in the suit

filed by the plaintiff by paying court fee for enforcement of

his contract. Ex.D31 is only a document relied by defendant

No.4/apellant herein. But, both the trial Court as well as the

First Appellate Court have given concurrent finding of fact

that, it is not proved.

      12.      Though      the       learned    counsel     for

appellant/defendant No.4    tried to raise substantial question

of law regarding court fee, it is to be noted here that, no

case of ouster is made-out so as to raise an issue regarding

Court fee as well as limitation. Hence, no question of law is

involved in this appeal so as to entertain the appeal. Under

these circumstances, looking to the facts and circumstances,

both the Courts below have analysed oral as well as

documentary evidence in detail and arrived at a just decision

of decreeing the suit by granting equal shares to all the

heirs. Under such circumstances no substantial question of

law is involved and this second appeal is not maintainable.

Hence, the appeal is devoid of any merits and needs to be

rejected. Accordingly, I proceed to pass the following:-

ORDER

This Regular Second Appeal is dismissed. The judgment and decree dated 24.07.2018 passed by the trial Court viz., principal Civil Judge and JMFC at Kalaburagi in OS No.465/2012 and the Judgment dated 09.01.2020 passed by the First Appellate Court ie., Principal Senior Civil Judge at Kalaburagi ('First Appellate Court' for short) in RA No.76/2018, are hereby confirmed.

Sd/-

JUDGE

KGR*