Smt Neelamma vs Sri Linganna
2022 Latest Caselaw 5438 Kant

                             1


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 25TH DAY OF MARCH, 2022

                           BEFORE

           THE HON'BLE MR.JUSTICE R.NATARAJ

    REGULAR SECOND APPEAL NO.162 OF 2019 (INJ)

BETWEEN:

1 . SMT. NEELAMMA
    W/O LATE D.N. VEERABHADRAPPA
    AGED ABOUT 59 YEARS,

2 . SRI D V. VEERESH
    S/O LATE D.N. VEERABHADRAPPA
    AGED ABOUT 38 YEARS,

3 . SMT D.V. MANJULA
    D/O LATE D.N. VEERABHADRAPPA
    AGED ABOUT 33 YEARS,

   ALL ARE RESIDING AT
   DEVALAKERE VILLAGE
   NIDAGAL HOBLI, PAVAGADA TALUK
   TUMKUR DISTRICT- 572 116.
                                        ...APPELLANTS

(BY SRI. HEGDE SHRIPAD GANGADHAR, ADVOCATE)

AND:


1 . SRI. LINGANNA
    S/O JOOLINGAPPA
    AGED ABOUT 66 YEARS,

2 . SRI MUTTARAYAPPA
    S/O MUTTARAYAPPA
                              2


  AGED ABOUT 59 YEARS,

  BOTH ARE RESIDING AT,
  K.T. HALLI VILLAGE
  NIDAGAL HOBLI
  PAVAGADA TALUK
  TUMAKURU DISTRICT - 572 116.
                                            ...RESPONDENTS

      THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908
AGAINST THE JUDGMENT AND DECREE DATED 27.07.2018
PASSED IN R.A. NO.17/2009 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC., PAVAGADA, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
20.11.2008 PASSED IN O.S.NO.24/2004 ON THE FILE OF THE
CIVIL JUDGE [JR.DN] AND JMFC., PAVAGADA.

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

                       JUDGMENT

This appeal is filed by the defendants in O.S.

No.24/2004 challenging the concurrent finding of fact

recorded by both the Courts that the plaintiffs are in

possession and enjoyment of the suit schedule property

and therefore, are entitled for perpetual injunction against

the defendants.

2. The parties will henceforth be referred to as

they were arrayed before the Court of the Civil Judge

(Jr.Dn.) and JMFC., Pavagada (henceforth referred to as

the 'Trial Court'). The appellants were the defendants

while the respondents were plaintiffs before the Trial

Court.

3. The plaintiffs sought for perpetual injunction on

the ground that they purchased the suit schedule property

on 17.01.2003 from the husband of the defendant No.1

and that they are in possession of the same ever since its

purchase. The plaintiffs claimed that the husband of the

defendant No.1 sold the suit property as the kartha of the

family to discharge the debts of the family. After the

purchase, the plaintiffs sought transfer of revenue records

which was objected by the defendants. The objection was

rejected and the names of the plaintiffs were entered in

the revenue records. In the meanwhile, defendant Nos.2

and 3 and another had filed O.S. No.1/2003 before the

then Court of Civil Judge (Jr.Dn.) and JMFC, Pavagada,

against the husband of the defendant No.1 for partition

and separate possession on 01.01.2003. The husband of

the defendant No.1 died on 11.03.2003, but the

defendants were interfering with the possession of the

plaintiffs. Hence, they filed the suit.

4. The defendants contested the suit by filing the

written statement and claimed that the husband of the

defendant No.1 had raised a loan of Rs.22,00,000/- from

the Karnataka State Financial Corporation (KSFC),

Tumakuru, to establish a poultry farm. In addition, he had

other loans that had to be cleared. Thus, they claimed

that the husband of the defendant No.1 mismanaged the

properties and also spent money on his Mistress. They

claimed that due to the intervention of the elders, the

defendant No.3 was entrusted with the affairs of the joint

family and upon coming to know about the illegal acts of

his father and the plaintiffs, he filed O.S. No.1/2003 for

partition and separate possession and obtained an order of

temporary injunction restraining alienation of the suit

property. Though the said order was intimated to the Sub-

Registrar, yet a sale deed was executed in favour of the

plaintiffs. They claimed that the revenue records in the

names of the plaintiffs were challenged before the

concerned Assistant Commissioner. They contended that

since the suit property belonged to the joint family, the

husband of the defendant No.1 alone could not have

alienated the suit property and therefore, the sale was not

binding upon the defendants.

5. Based on these rival contentions, the Trial

Court framed the following Issues:

"1. Whether plaintiffs prove their possession over the suit schedule property as on the date of the suit?

2. Whether plaintiffs prove the interference as alleged?

3. Are the plaintiffs entitled for the relief as prayed?

4. What order or decree?"

6. The plaintiff Nos.1 and 2 were examined as

PW.2 and PW.1 respectively and they examined a witness

as PW.3 and they marked documents as Exs.P1 to P4. The

defendant No.2 was examined as DW.1 and a witness was

examined as DW.2. They marked documents as Exs.D1 to

D4.

7. The Trial Court noticed the evidence on record

and held that the plaintiffs had proved that the suit

property was conveyed to them by virtue of the sale deed

executed by the husband of the defendant No.1. Though

the defendant Nos.2 and 3 attempted to implead the

plaintiffs in the suit in O.S. No.1/2003, the said suit was

dismissed for non-prosecution on 31.08.2006 and no

attempts were made by the defendant Nos.1 and 2 for

restoration of the suit. In that view of the matter, the Trial

Court held that the plaintiffs had proved their title to the

suit property and therefore, granted injunction restraining

the defendants from interfering with the possession of the

plaintiffs.

8. Being aggrieved by the aforesaid Judgment

and Decree, the defendants filed Regular Appeal

No.17/2009.

9. The Court of the Senior Civil Judge and JMFC.,

Pavagada, (henceforth referred to as the 'First Appellate

Court') secured the records of the Trial Court, heard the

learned counsel for the parties and framed points for

consideration and held that the plaintiffs had proved the

flow of title from the husband of the defendant No.1 to the

plaintiffs. It held that though the defendants tried to

challenge the alienation made by the husband of the

defendant No.1 to the plaintiffs by filing suit in O.S.

No.1/2003 , no attempt was ever made to pursue the suit,

but was allowed to be dismissed for non-prosecution.

10. In that view of the matter, the First Appellate

Court held that the plaintiffs had proved their title to the

suit property and hence, dismissed the appeal.

11. Being aggrieved by the aforesaid Judgment

and Decree, the present Regular Second Appeal is filed.

12. The learned counsel for the

defendants/appellants submitted that a perusal of the sale

deed dated 17.01.2003 in favour of the plaintiffs would

indicate that the sale of the suit property in favour of the

plaintiffs was to meet family necessities and the husband

of the defendant No.1 had conveyed it as the kartha of the

family. Therefore, the learned counsel submitted that the

plaintiffs and the husband of the defendant No.1 were

dealing with the properties of the joint family and hence,

the said sale deed did not bind the interest of the

defendants as they had not joined in its execution. The

learned counsel fairly submitted that after the suit in O.S.

No.1/2003 filed by the defendant Nos.1 and 2 was

dismissed, defendant No.2 has now filed the suit in O.S.

No.179/2017 before the Court of the Principal Civil Judge

and JMFC., Pavagada, for partition and separate

possession of their share in the suit schedule property.

13. I have considered the contentions urged by the

learned counsel for defendants.

14. Since the attempts of the defendants to avoid

the sale deed by filing the suit in O.S. No.1/2003 proved

futile, there was no other go for the Trial Court but to

decree the suit for injunction. Since the defendants did

not dispute the fact that the husband of defendant No.1

possessed title to convey the suit property to the plaintiffs

and since the defendant No.2 has already filed a suit in

O.S. No.179/2017 for partition, the Trial Court and the

First Appellate Court were justified in decreeing the suit for

injunction.

15. In that view of the matter, this Court does not

consider it appropriate to interfere with the findings of fact

recorded by both the Courts. Hence, this Appeal lacks

merit and the same is dismissed.

16. It is open for the defendants/appellants to

pursue their suit for partition in accordance with law.

The pending interlocutory application stands

disposed off.

Sd/-

JUDGE sma