Sri. Venkatesh S/O Mahadevappa ... vs Sri.Mahadevappa S/O Sheshappa ...
2022 Latest Caselaw 3902 Kant

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             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

          DATED THIS THE 8TH DAY OF MARCH 2022

                          PRESENT

       THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD

                              AND

       THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR


              R.F.A.No.100132/2016 (PAR/POS)

BETWEEN:

SRI. VENKATESH S/O MAHADEVAPPA GADAD
AGED ABOUT 27 YEARS
OCC: PRIVATE EMPLOYEE and AGRICULTURIST
R/O: HIREWADDATTI POST
MUNDARGI TALUK
GADAG DISTRICT

                                               .. APPELLANT
(BY SRI.SATHISH M.S., ADV.)


AND:

1.   SRI.MAHADEVAPPA S/O SHESHAPPA GADAD
     AGED ABOUT 64 YEARS
     OCC: AGRICULTURIST
     R/O: HIREWADDATTI POST
     MUNDARGI TALUK
     GADAG DISTRICT

2.   SMT. KUSUMADEVI W/O MAHADEVAPPA GADAD
     AGED ABOUT 54 YEARS
     OCC: HOUSEHOLD WORK
     R/O: HIREWADDATTI POST
     MUNDARGI TALUK
     GADAG DISTRICT
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3.   SMT. ANNAPURNA W/O R RANGAYYA SHETTY
     AGED ABOUT 38 YEARS
     OCC: HOUSEHOLD WORK
     R/O: MASKI POST
     LINGASUGUR TALUK
     RAICHUR DISTRICT

4.   SRI RAGHAVENDRA S/O MAHADEVAPPA GADAD
     AGED ABOUT 29 YEARS
     OCC: PRIVATE EMPLOYEE and AGRICULTURIST
     R/O: HIREWADDATTI POST
     MUNDARGI TALUK,
     GADAG DISTRICT

5.   THE DEPUTY COMMISSIONER
     GADAG,
     DIST: GADAG

6.   THE EXECUTIVE OFFICER
     TALUK PANCHAYAT MUNDARGI
     GADAG DISTRICT

7.   THE SECRETARY GRAM PANCHAYAT
     HIREWADDATTI POST, MUNDARGI TAKLUK
     GADAG DISTRICT

                                        .. RESPONDENTS
(BY SRI.V.S.KALASURMATH, HCGP FOR R5,
    SRI.K.S.PATIL, ADV. FOR R6 & R7,
    R1 TO R4 ARE SERVED)


     THIS APPEAL IS FILED UNDER 96 R/W ORDER 41 RULE 1 OF
CPC SEEKING TO SET ASIDE THE IMPUGNED JUDGMENT AND
DECREE PASSED BY THE ADDITIOAL SENIOR CIVIL JUDGE, GADAG
IN O.S.NO.90/2011 DATED 16.02.2016 CONSEQUENTLY DECREE
THE SUIT FILED BY THE APPELALNT BY ALLOWING THE PRESENT
APPEAL GRANTING 1/5TH SHARE TO THE APPELLANT IN RESPECT
OF THE SUIT SCHEDULE PROPERTIES.

     THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
H.T.NARENDRA PRASAD, J. DELIVERED THE FOLLOWING:
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                          JUDGMENT

This appeal is filed by the appellant/plaintiff under

Section 96 r/w Order XLI Rule 1 of CPC challenging the

judgment and decree dated 16.02.2016 in

O.S.No.90/2011 passed by the Additional Senior Civil

Judge, Gadag whereby the suit filed by the

appellant/plaintiff is partly decreed.

2. The brief facts of the case are that: plaintiff is

the son of defendant Nos.1 and 2, defendant No.3 is the

sister and defendant No.4 is brother of the plaintiff. Suit

properties are ancestral properties of plaintiff and

defendant Nos.1 to 4 and they are in joint possession of

the suit properties. It is the case of the plaintiff that

defendant No.1 sold the suit property in favour of

defendant Nos.6 and 7 by sale deed dated 30.11.2006.

Since the suit schedule properties are joint family

properties, plaintiff has a share in the suit schedule

properties and hence, he filed the suit for partition and

also seeking cancellation of the sale deed executed by

defendant No.1 in favour of defendant Nos.6 and 7.

3. After service of notice, defendants appeared

through their respective counsel. Defendant No.4 has

filed the written statement and the same has been

adopted by defendant No.3 by filing a memo. Defendant

No.6 has also filed the written statement. On the basis of

the pleadings of the parties, the trial court framed

following issues:

i) Whether the plaintiff proves that, suit

schedule properties are family properties of

himself and defendants and are available

for partition?

ii) Whether the plaintiff further proves that, he

is entitled to get 1/5th share in the suit

schedule properties?

iii) Whether the plaintiff further proves that,

the sale deed executed by defendant No.1

in favour of defendants No.6 and 7 is not

binding on him?

iv) Whether the plaintiff is entitled to the relief

as sought for?

v) What Order or Decree?

4. To prove his case, plaintiff examined himself

as P.W.1 and got marked 12 documents. Defendants

neither examined any witness nor marked any

documents. On appreciation of oral and documentary

evidence, the trial court has answered issue Nos.1, 2 and

4 partly in the affirmative, issue No.3 in the negative and

issue No.5 as per the final order. The trial court has

passed the decree, which reads as under:

"In the result, the suit of the plaintiff is partly decreed.

Consequently, the plaintiff is entitled for his 1/5th share in the items NO.1(B) (i and ii).

The suit of the plaintiff in respect of suit schedule item No.1(a) (i and ii) is dismissed with cost."

5. Being aggrieved by the same, the plaintiff has

filed this appeal.

6. Learned counsel Sri.Satish M.S. appearing for

the appellant/plaintiff has contended that since the suit

schedule properties are joint family properties, the

plaintiff is entitled for share in the suit schedule

properties. Hence, he filed the suit. He would further

contend that item No.1(a) property has been sold by his

father by sale deed dated 30.11.2006 and as on that

date, he was aged about 17 years. He attained majority

on 18.07.2007. The suit was filed on 17.06.2011. Hence,

Article 109 of the Limitation Act is applicable to the case

of the plaintiff. The limitation for filing a suit is 12 years.

The trial court has wrongly relied on Article 60 of the

Limitation Act and dismissed the suit in respect of item

No.1(a) of the property on the ground that it is barred by

limitation. He further contended that even the defendants

have not entered into the witness box to prove that said

property has been sold for family necessity. Hence, he

sought for allowing the appeal.

7. Per contra, learned HCGP Sri.V.S.Kalasurmath

appearing for respondent No.5 and learned counsel

Sri.K.S.Patil appearing for respondent Nos.6 and 7 would

contend that suit filed by the plaintiff is defective suit.

The property has been purchased by the State

Government and the State has not been made as a party

and no notice has been issued. They further contend that

primary burden lies on the plaintiff to prove that suit

schedule item No.1(a) is a joint family property and the

plaintiff has not produced any document to establish the

same. They further contended that Gram Panchayat has

purchased the land, formed sites and allotted to 303

houseless persons and they have not been made as party

to the suit. They further contended that though the

plaintiff has produced Ex.P11-Tiluvalike Patra, but he has

not produced any revenue records to show that suit

schedule item No.1(a) property is a joint family property.

Therefore, the trial court has rightly rejected the claim of

the plaintiff in respect of item No.1(a) property. Hence,

they sought for dismissal of the appeal.

8. Heard the learned counsel for the parties and

perused the records.

9. The point that would arise for our

consideration in this appeal is:

"Whether the trial court was justified in

passing the judgment and decree in the facts and

circumstances of the case?"

10. The contention of the appellant/plaintiff is that

suit schedule properties are joint family properties.

Except producing Ex.P11-Tiluvalika Patra, no records

have been produced to prove that suit schedule

properties are joint family properties. The specific relief

sought by the plaintiff is for cancellation of the sale deed

executed by defendant No.1 in favour of defendant Nos.6

and 7, which is produced at Ex.P1. On perusal of Ex.P1, it

is seen that the same is executed in favour of the

Governor of Karnataka represented by Executive Officer,

Taluk Panchayat and Secretary, Gram Panchayat. Since it

is in favour of the State, under Order XXVII Rule 5A of

CPC, the State is a necessary party and the plaintiff has

not made the State as a party to the suit. Hence, the suit

filed by the plaintiff is defective in nature. Even though

the defendants have taken a plea that they have formed

sites and have allotted to 303 allottees, they have not

produced any documents before the trial court regarding

allotment of sites and the allottees name is also not

furnished. Even the trial court has wrongly relied on

Article 60 of the Limitation Act and it is the specific case

of the plaintiff that Article 109 of the Limitation Act is

applicable to the case in hand.

11. Under these circumstances, to give one more

opportunity to both the parties, we are of the opinion

that, appeal has to be allowed by setting aside the

impugned judgment and decree passed by the trial court

and remitting the matter to the trial court.

12. Accordingly, we proceed to pass the following:

ORDER

The appeal is allowed.

The judgment and decree dated 16.02.2016 passed in O.S.No.90/2011 by the Additional Senior Civil Judge, Gadag is set aside.

The matter is remitted back to the trial court with liberty to the parties to adduce additional evidence and produce necessary documents.

Since the matter is of the year 2011, in the interest of justice, the parties are directed to appear before the trial court on 11.04.2022 without expecting any further notice from the trial court. The trial court is directed to issue fresh notice to defendant Nos.1 to 4, as they are served and unrepresented before this court, and dispose of the suit, in accordance with law within six months from the date of appearance of the parties.

Office is directed to transmit the TCR to the

concerned court forthwith.

Sd/-

JUDGE

Sd/-

JUDGE MBS/-