Sri Basappa vs Gangappa
2022 Latest Caselaw 4713 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 14TH DAY OF MARCH, 2022

                         BEFORE

           THE HON'BLE MR.JUSTICE R. NATARAJ

            R.S.A. NO.1208 OF 2016 (PAR)

BETWEEN:

SRI BASAPPA
SINCE DEAD BY HIS LRS.

1(a)   JAYAMMA,
       W/O LATE BASAPPA,
       AGED ABOUT 66 YEARS,

1(b)   KESHAVA
       S/O LATE BASAPPA,
       AGED ABOUT 38 YEARS,

1(c)   ARATHI
       D/O LATE BASAPPA,
       AGED ABOUT 34 YEARS,

       1(a) TO (c) ARE R/AT
       RAMAGONDANAHALLI VILLAGE,
       YELAHANKA HOBLI,
       BENGALURU NORTH TALUK,
       BENGALURU-560064.
                                         ...APPELLANTS
(BY SRI. SOMARAJU A., ADVOCATE)

AND:

1.     GANGAPPA
       S/O LATE KEMPAIAH,
       AGED ABOUT 68 YEARS,


2.     NARAYANASWAMY @ NARAYANAPPA
       S/O LATE KEMPAIAH
                           2



     AGED ABOUT 63 YEARS,

     BOTH ARE R/AT
     RAMAGONDANAHALLI VILLAGE,
     YELAHANKA HOBLI,
     BENGALURU NORTH TALUK-560064.

3.   BASAVARAJU
     S/O ANJINAPPA,
     AGED ABOUT 58 YEARS,
     R/AT BYRATHI VILLAGE,
     DODDAGUBBI POST,
     BENGALURU EAST TALUK-560049.

4.   NARAYANAMMA
     W/O UTHANALAPPA,
     D/O LATE KEMPAIAH,
     AGED ABOUT 70 YEARS,
     R/AT BAGALUR VILLAGE,
     SULIBELE HOBLI, HOSKOTE TALUK,
     BENGALURU RURAL DISTRICT-562114.

5.   RATHNAMMA
     W/O. THIMMARAYAPPA
     D/O. LATE KEMPAIAH
     AGED ABOUT 66 YEARS
     R/AT. BIDDALUR VILLAGE
     DEVANAHALLI TALUK
     BENGALURU RURAL DISTRICT.
                                        ...RESPONDENTS

      THIS R.S.A. IS FILED UNDER SECTION 100 OF CODE OF
CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND
DECREE DATED 12.04.2016 PASSED IN RA NO.23/2011 ON THE
FILE OF THE VIII ADDL. DISTRICT AND SESSIONS JUDGE,
BENGALURU RURAL DISTRICT, BENGALURU, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED
26.11.2010 PASSED IN OS NO.1107/2007 ON THE FILE OF THE
I ADDL. SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT,
BENGALURU.

     THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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                         JUDGMENT

This Regular Second Appeal is filed by the

unsuccessful plaintiff challenging the concurrent finding of

fact recorded by both the Courts holding that the plaintiff

is not entitled to partition and separate possession of his

1/3rd share in the suit properties and for a declaration that

the sale deed dated 19.07.2003 executed by defendant

No.2 in favour of defendant No.3 does not bind him.

2. The parties shall henceforth be referred as

they were arrayed before the Trial Court.

3. The plaintiff claims that his father had

purchased the land bearing Sy.No.21/1 measuring 2 acres

30 guntas and Sy.No.19/1 measuring 1 acre in terms of a

sale deed dated 19.07.2003 and 20.03.2004. He claimed

that after the death of his father, defendants No.1 and 2

and the family succeeded to the estate and that there was

no division amongst them. The plaintiff, defendants No.1

and 2 sold the property bearing Sy.No.21/1 measuring 2

acres 7½ guntas to the defendant No.3 in terms of a sale

deed dated 20.03.2004.

4. It is alleged that the property bearing

Sy.No.19/1 remained in the joint family. However, the

defendant No.2 had unauthorisedly sold the said land to

defendant No.3 in terms of a sale deed dated 19.07.2003.

Therefore, the plaintiff alleged that he is entitled for a

share in the suit property and for a declaration that the

said sale deed in favour of defendant No.3 did not bind the

plaintiff.

5. The defendant No.1 contested the suit and

admitted the case of the plaintiff and prayed that the suit

may be decreed. The defendant No.2 also joined hands

with the plaintiff and prayed that the suit may be decreed.

6. The suit was contested earnestly by defendant

No.3, who contended that there was a severance in the

status of the family of the plaintiff and defendants and that

all of them were residing separately. He claimed that

defendant No.2 was the owner of the land in Sy.No.19/1

which fell to his share and that he had lawfully conveyed it

to him. He further contended that the plaintiff had not

included the other properties that stood in the name of

defendants No.1 and 2.

7. Based on these rival contentions, the Trial

Court framed the following issues :

1) Whether the plaintiff proves that the suit schedule property is the joint family property of the plaintiff and defendants 1 & 2 and he is in joint possession and enjoyment of the same along with the defendants 1 & 2?

2) Whether the plaintiff proves that the sale deed dt: 19/07/03 executed by 2nd defendant in favour of the 3rd defendant is not binding on the share of the plaintiff?

3) Whether the 3rd defendant proves that after the death of Kempaiah, the plaintiff and defendants 1 & 2 have entered into a family arrangement, in which the land measuring 1 acre in Sy.No.19/1 was allotted to the share of the 2nd defendant, and the land measuring 2 acres 13 guntas in Sy.No.21/1 was jointly allotted to the share of plaintiff and 3rd defendant, and the said family arrangement was acted upon?

4) Whether the 3rd defendant proves that the suit is bad for non-joinder of necessary and proper parties?

5) Whether, the 3rd defendant proves that the suit is bad for partial partition?

6) Whether the plaintiff is entitled for the relief of partition and separate possession, if so to what extent?

7) What order or decree?

8. The plaintiff was examined as P.W.1 and he

marked documents as Exs.P-1 to P-7. The defendant No.3

was examined as D.W.1 and he marked documents as

Exs.D-1 to D-10.

9. Based on the oral and documentary evidence,

the Trial Court dismissed the suit primarily on two

grounds, namely that the plaintiff had deliberately not

included the other properties of the family that stood in

the name of defendants No.1 and 2 and that the sisters of

the plaintiff were not arrayed as parties in the suit.

10. Being aggrieved by the aforesaid judgment and

decree, the plaintiff filed R.A. No.23/2011.

11. The First Appellate Court secured the records

of the Trial Court, heard the counsel for the parties and

framed points for consideration and in terms of its

judgment and decree dated 12.04.2016, held that plaintiff

had not included the properties that stood in the name of

the defendants in view of the contention of the plaintiff

and defendants No.1 and 2 that there was no severance in

the status of the joint family. It therefore, held that all the

properties must have been included in the suit for

partition. The First Appellate Court, therefore, dismissed

the appeal filed by the legal heirs of plaintiff.

12. Being aggrieved by the aforesaid judgment and

decree, the present Regular Second Appeal is filed.

13. The learned counsel for plaintiff submitted that

the properties in the name of defendants No.1 and 2 were

their exclusive properties which were not available for

partition, and therefore, the Trial Court committed an error

in dismissing the suit. He also contended that the sisters

were arrayed as parties before the First Appellate Court,

and therefore, the suit must have been decreed in respect

of the land bearing Sy.No.19/1. He further contended that

the very fact that all the parties had joined in executing

the sale deed in respect of Sy.No.21/1 in favour of

defendant No.3 indicated that the suit property belonged

to the joint family, and therefore, the suit must have been

decreed.

14. This is a classic case of plaintiff and defendants

No.1 and 2 joining hands to needle a purchaser who had

purchased the property. The defendant No.2, having sold

the property to defendant No.3 could not have joined

hands with the plaintiff by filing a written statement

praying that the suit may be decreed. The defendant No.2

owed a duty to explain the circumstances under which he

conveyed the entire property in Sy.No.19/1. This,

therefore, speaks volumes of the conduct of plaintiff. If

the plaintiff desired to sue for partition of the joint family

estate , he was bound to include the other properties of

the family that either stood in the name of plaintiff or

defendants 1 and 2, more particularly when they claimed

that the family was joint. It was for the Court to decide

which were the properties that belonged to the joint family

and which were the absolute properties of defendants No.1

and 2. The plaintiff cannot choose to proceed against a

particular property, having regard to the fact that it was

purchased by defendant No.3. The Trial Court and First

Appellate Court have considered the same with all care

and caution and have rightly held that the suit for partition

is not maintainable. Since both the Courts have held that

the plaintiff is not entitled for relief of partition which is a

pure question of fact, the same cannot be disturbed in a

second appeal. Hence, there is no merit in this appeal and

the same is dismissed.

Pending I.A., if any, does not survive for

consideration.

Sd/-

JUDGE

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