Sri Chandrashekar S/O ... vs Megharaj S/O Giriyappa Rajur
2022 Latest Caselaw 11996 Kant

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                                         RFA No. 3012 of 2009




     IN THE HIGH COURT OF KARNATAKA, DHARWAD
                          BENCH

     DATED THIS THE 21ST DAY OF SEPTEMBER, 2022

                          BEFORE
        THE HON'BLE MR JUSTICE H.P.SANDESH
       REGULAR FIRST APPEAL NO. 3012 OF 2009
                        (PAR/POS-)
BETWEEN:

1.    SRI CHANDRASHEKAR
      S/O GAVISIDDAPPA MUNDARAGI
      AGE: 21, OCC STUDENT
      R/AT DEVARAJ URS COLONY,
      SALAR JANG ROAD, KOPPAL
                                                  ...APPELLANT
(BY SRI. RAJASHEKAR.R.GUNJALLI, ADVOCATE)

AND:

1.    MEGHARAJ S/O GIRIYAPPA RAJUR
      AGE: 44 YEAR, R/O GOWRA CEMENT WORK
      GADAG ROAD NEAR MALE
      MALLESHWARA TEMPLE KOPPAL
      TQ AND DIST KOPPAL

2.    GAVISIDDAPPA S/O SHIVAPPA MUNDARAGI
      AGE: 54, OCC AGRIL
      R/AT DEVARAJ URC COLONY SALAR
      JANG ROADKOPPAL

3.    SMT ARCHANA W/O GAVISIDDAPPA KOTI
      AGE: 27, OCC H/WR/AT SIDDALING NAGAR
      GADAG TQ AND DIST GADAG

4.    KUM NEATRAVATHI D/O GAVISIDDAPPA
      MUNDARGI
      R/AT DEVARAJ URS COLONY SALAR
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                                         RFA No. 3012 of 2009

    JANG ROAD KOPPALTQ AND DIST KOPPAL

                                               ...RESPONDENTS

(BY SRI. MAHABALESHWAR HASINAL, ADVOCATE
 AND SRI.M.M.NAIKWADI, ADVOCATE FOR R1,
 SRI.M.C.BASAREDDY, ADVOCATE FOR R1,
 R2 TO R4 ARE SERVED)

     THIS RFA IS FILED U/S 96 OF CPC AGAINST THE JUDGMENT &
DECREE DATED 05/12/2008 PASSED IN O.S.NO.05/2007 ON THE
FILE OF THE CIVIL JUDGE (SR.DN), KOPPAL, PARTLY DECREED THE
SUIT & FILED FOR PARTITION & SEPARATE POSSESSION.

     THIS RFA COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                        JUDGMENT

Heard learned counsel for the appellant. Learned

counsel for respondents are absent. This Court made it

clear that if counsel for respondents does not appear, the

matter will be heard in their absence.

2. This appeal is filed by the plaintiff questioning

the finding of the trial Court in respect of item at Sl.No.3

of schedule 'A' property i.e. 1 acre of land bearing

Sy.No.214/2C2P.

RFA No. 3012 of 2009

3. The main contention of the plaintiff before the

trial Court is that defendant Nos.3 and 4 are his sisters

and defendant No.2 is his father and defendant No.1 is the

purchaser of item at Sl.No.3 of the property. Defendant

No.3 is the married sister and defendant No.4 is still

unmarried. The said property belongs to the joint family

and defendant No.2 got share of certain agricultural lands

and house properties described in schedule 'A' and 'B' for

family partition. The plaintiff's uncle had instituted

O.S.No.19/87, the said was compromised. The properties

are ancestral properties and defendant No.2 had sold

property in favour of defendant No.1 on 13.10.1988 and

by that time plaintiff and defendant Nos.3 and 4 were

minors and sale was made not for any family necessity or

for any joint family benefit. Defendant No.1 had sold a plot

and accordingly defendant No.2 had sold the same in

order to deprive the rights of the plaintiff and other family

members and hence, sought for decree for partition of 'A'

and 'B' schedule properties claiming 1/4th share.

RFA No. 3012 of 2009

4. In pursuance of the suit notice, defendant No.1

appeared and filed written statement contending that the

suit item No.3 land shown in 'A' schedule property

purchased out of income from the land and house

properties on behalf of joint family and denied the said

contention of the plaintiff and contended that question of

granting any 1/4th share in respect of suit land does not

arise. The defendant contended that there was already a

partition in the family in respect of ancestral properties in

between defendant No.2 and his brother and the said

property was allotted to the share of defendant No.2. It is

contended that the property belongs to defendant No.2

and hence he was the absolute owner of suit schedule

item No.3 and he has sold it in favour of this defendant for

his family necessity for a valuable consideration of Rs.3

lakhs and possession is also delivered. Defendant after the

purchase of the property made improvements over the

suit land with an intention to convert the said land for non-

agricultural purpose. Further, it is contended that without

prejudice to the above and without admitting the share of

RFA No. 3012 of 2009

the plaintiff in the suit schedule item No.3 it is submitted

that the defendant No.2 owns some other properties which

have been purchased in the name of his wife and other

relatives but have not been included int eh suit for which

the suit for partial partition of the family properties is not

maintainable.

5. Defendant No.3 also filed written statement

admitting that suit schedule properties are joint family

properties and defendant Nos.2 to 4 are in joint

possession and enjoyment of all the joint family properties

including Sy.No.214/2C2P measuring 1 acre described at

item No3 of schedule 'A' property and also claimed 1/4th

share.

6. Based on the pleadings of the parties the trial

Court framed the following issues:

1. Whether the plaintiff proves that the suit schedule properties are the joint family properties of the plaintiff and defendant No.2 t 4?

RFA No. 3012 of 2009

2. Whether the plaintiff proves that he was having a 1/4h share in schedule 'A' and 'B' properties?

3. Whether the defendant No.1 proves that the suit schedule 'A' at Sy.No.3 property was self- acquired property of defendant No.2 and he has sold the same to him for his legal necessity?

4. Whether the defendant No.1 proves that he was a bonafide purchaser of the suit schedule 'A' Sl.No.3 property?

5. Whether the plaintiff proves that he is entitled for partition and separate possession of his 1/4th share in the suit schedule property?

6. What order or decree?

7. The plaintiff in order to substantiate his case,

examined himself as P.W.1 and got marked documents as

Exs.P.1 to P.7. On the other hand, defendant No.1 is also

examined as D.W.1 and also examined one witness as

D.W.2 and got marked documents as Exs.D.1 to D.10.

8. The trial Court after considering both the oral

and documentary evidence on record, granted decree

RFA No. 3012 of 2009

excluding item No.3 of suit schedule property in coming to

the conclusion that defendant No.1 is a bonafide purchaser

of suit schedule property. Being aggrieved by the same,

the present appeal is preferred by the plaintiff.

9. The main contention of the counsel appearing

for the plaintiff is that the trial Court has committed an

error in granting share in respect of item No.3 of 'A'

schedule property and the reasons assigned while

answering issue Nos.3 and 4 has erroneously comes to the

conclusion that property was sold for legal necessity of

family and that is not the pleading of defendant and trial

Court comes to the erroneous conclusion that the property

was sold for family necessity. It is also contended that

property purchased by defendant No.1 is more valuable as

mentioned in the sale deed while passing the judgement

and the trial Court has not considered the said aspect

while granting the decree and hence, it requires

interference.

RFA No. 3012 of 2009

10. Having heard the learned counsel for the

appellant and also on perusal of the material available on

record, the following points would arise for consideration:

i. Whether the trial Court has committed an error in answering issue No.4 in coming to the conclusion that defendant is a bonafide purchaser?

ii. What order?

11. Regarding Point No.1: The trial Court after

considering the evidence, answered issue No.1 as

affirmative in coming to the conclusion that suit schedule

properties are joint family properties of the plaintiff and

defendant Nos.2 to 4 and admittedly while answering issue

No.2 comes to the conclusion that entitled for 1/4th share

in schedule 'A' and 'B' property except item No.3 of the

property. In respect of issue No.3 also partly answered

and held that property is not self acquired property of

defendant No.2 as contended by the defendant and comes

to the conclusion that he has sold the same for his legal

RFA No. 3012 of 2009

necessity and while answering issue No.4 comes to the

conclusion that he was a bonafide purchaser.

12. Having considered the material on record, this

Court has to re-appreciate the findings of the trial Court to

appreciate both the oral and documentary material

available on record to consider question of law.

13. No doubt, admittedly it is emerged that the

plaintiff was minor as on the date of execution of the sale

deed i.e. 03.04.2006 and no doubt the document was

registered on 31.05.2006 and it goes back to the date of

execution and not the date of registration and recitals of

the document disclose sale consideration was received on

the date of the execution of the document. When such

being the case, the very contention of the appellant that

he was major cannot be accepted. The trial Court in para

12 in detail discussed taking note of date of birth of the

plaintiff as 01.05.1988 and execution of sale deed as

03.04.2006 and has rightly comes to the conclusion that

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RFA No. 3012 of 2009

as on the date of the execution of the sale deed he was a

minor i.e. still below the age of 18 years.

14. Counsel vehemently argues that the Court has

to take note of the date of registration of the document

and such contention cannot be accepted and it goes back

to the date of execution of the document and document

though the document is registered subsequently. It is the

contention of the plaintiff that execution of the sale deed

by the plaintiff is admitted and only contention is that it is

joint family property and they have not joined and for no

legal necessity the property is sold, but in the written

statement specifically defendant has took the contention

that property was sold for family necessity and received

sale consideration of Rs.3 lakhs as on the date of

execution in para No.8 narrating the further facts of the

case.

15. Now this Court has to examine the evidence

available on record. No doubt, P.W.1 in his evidence, has

reiterated the contents of the plaint averments in the

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RFA No. 3012 of 2009

affidavit. He was subjected to cross-examination and in

cross-examination, he admits that he made the claim

claiming share in respect of suit schedule property

including the property which was sold in favour of

defendant No.1. In the cross-examination, he admits that

sale deed also produced and marked as Ex.P.7 and also

admits that the contents of the document mentioned in

Ex.P.7 are true and also the same is produced at Ex.P.7

and also admits that his father has executed the said sale

deed. It is suggested that after the partition in the family,

father had purchased the property and the same has been

denied. He also admits that in the suit in O.S.No.19/87 his

uncle claimed partition and admits that in the said suit his

father got 9 acres of land including house i.e. including of

Sy.Nos.188 and 186 of Lachanakeri village. But, he claims

that his mother was looking after the family and mother

side also they have got number of properties and also

admits that his one of the sister is married and she is

staying in her husband's house and another sister is

unmarried. He admits that he is also staying along with

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RFA No. 3012 of 2009

parents but he claims that he is residing separately. He

admits that father was doing pigmy even though they

were having agricultural lands. He also admits that

defendant No.1 has purchased the property for an amount

of Rs.3 lakhs and admits that from last two years in view

of mining business at Koppal, the land value has been

increased and in an ingenious method he says that

property value has been increased from last two years,

denies the same and claims that property value was

reduced. He admits in the cross-examination that property

value as per his affidavit it is worth of Rs.40 lakhs. He also

claims that property land value has been increased.

16. Defendant No.1 is also examined as DW.1. In

his affidavit he reiterates the contents of the written

statement. In the cross-examination, he admits that

plaintiff's father is having several properties at

Lachanakeri, but he claims that property was sold for

family necessity and for performing the marriage of

daughter and the same is not mentioned in the document.

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RFA No. 3012 of 2009

He also admits that wife of defendant No.2 is also having

number of properties. It is suggested that there was no

family necessity and he is falsely deposing the same. The

same was denied.

17. The other witness is DW.2 and material

witnesses are DW.1 and P.W.1. Having considered the

evidence on record and though counsel for the appellant

contends that he was major at the time of execution of the

sale deed and this Court already found that he was minor

at the time of execution of the sale deed, but as on the

date of registration of the document he was major. It is

specific contention of the defendants that defendant No.2

was in need of money for his family necessity and P.W.1

also in the cross-examination, has categorically admitted

that defendant No.1 had purchased the property for sale

consideration of Rs.3 lakhs and also he categorically

admits the contents of the document at Ex.P.7, wherein it

is mentioned that the property is sold for family need in

order to meet household expenses and the same is also

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RFA No. 3012 of 2009

elicited in the cross-examination of PW-1 and he also

categorically admits that the contents mentioned in Ex.P.7

are true and he is aware of the same and this admission is

extracted in the reasoning of the trial Court while coming

to the conclusion that defendant was a bonafide purchaser

of the property and it is not the pleading of the plaintiff

that the property was not sold for any legal necessity or

father was addicted to any bad vices and the fact that all

of them were residing together at the time of executing

the sale deed is not disputed. It is also admitted by PW-1

that his father had performed the marriage of one of the

sister and the other daughter was unmarried and no doubt

the defendants have claimed that it was self-acquired

property of defendant No.1 but material discloses that no

such material is produced before the Court. Therefore, the

trial Court has rightly come to the conclusion that the

same is not self acquired property of defendants but

rightly comes to the conclusion that it was sold for the

family necessity and he is a bonafide purchaser.

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RFA No. 3012 of 2009

18. Having taken note of answer elicited from the

mouth of PW-1 and also when the specific defence is taken

that the property is sold for the family necessity and it is

elicited from the mouth of PW-1 that his father had got

9 acres of land in terms of the partition taken place in

O.S.No.19/1987 and apart from that mother side also

having number of properties, when such being the case, if

really the plaintiff is claiming a share in respect of his

share out of the joint family property when other

properties were also available, he can take a share in the

remaining properties and hence, it is clear that after

selling the property in favour of defendant No.1 and the

minor son who became major subsequent to the execution

of the sale deed filed the suit against the father and he

categorically admits that other unmarried sister is also

residing along with the parents and the Court has to take

note of the conduct of the parties and it is nothing but

selling the property for the valuable consideration and

questioning the same for seeking the relief and that there

is no prayer in the plaint that the sale deed is not binding

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RFA No. 3012 of 2009

on the plaintiff and also not sought for any declaration

declaring the sale deed as null and void but only they have

claimed the simple relief of partition and 1/4th share

including the property which was sold in favour of

defendant No.1 by defendant No.2 who is the father of the

plaintiff and hence I do not find any merit in the appeal to

reverse the finding of the trial Court.

19. It is also important to note that P.W.-1 in one

breath admits that the value of the property is increased

but after selling the property again he says that the value

of the land has been increased from last two years and the

sale deed was executed in the year 2006 and on the very

next year 2007 suit was filed and also he categorically

admits that in his affidavit he claimed the value of the suit

property as Rs.40 lakhs and hence it is clear that the very

conduct of the plaintiff wherein in one breath he says

value of the property is decreased and again he says

property value has been increased and it worth about

Rs.40 lakhs, in view of mining being done in Koppal and

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RFA No. 3012 of 2009

when such being the case, I do not find any force in the

contention of the learned counsel for the appellant that the

trial Court has committed an error in answering issue No.4

in favour of the defendants and hence, I find no merit in

the appeal. Accordingly, I answer point No.1 in the

negative.

20. Regarding point No.2: In view of the

discussions made above, I pass the following:

ORDER

Appeal is dismissed.

Sd/-

JUDGE

SH,JM