Prabhu S/O Bharamappa Pujar vs Mahesh S/O Ningappa Sherewad
2022 Latest Caselaw 11997 Kant

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                                    RFA No. 1509 of 2006


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. 1509 OF 2006 (PAR)


BETWEEN:

1.    PRABHU BHARAMAPPA PUJAR
      AGE:55 YEARS, OCC: AGRICULTURE
      R/O. PANIGATTI,
      TALUKA: SHIGGAON
      DISTRICT: HAVERI.

2.    SMT. NINGAVVA
      W/O. BHARMAPPA PUJAR
      AGE: 76 YEARS,
      OCC: HOUSEHOLD WORK
      R/O: PANIGATTI
      TALUKA:SHIGGAON
      DISTRICT: HAVERI.

3.    SMT. GIRIJAVVA
      W/O. SURESH AKKI
      (SINCE DECEASED REPRESENTED
      BY HER LRS)

3(a) SUJATHA
     D/O. SURESH AKKI
     AGED ABOUT 28 YEARS
     R/O: PANATHABAILU HOUSE
     BANTWAL TALUKA, ALLIPADE
     DIST: DAKSHIN KANNADA-574 211.

3(b) SMT. SANGEETHA SHAMBHULINGAPPA ANAJI
     AGED ABOUT 26 YEARS
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                                     RFA No. 1509 of 2006


       R/O: L.B.S. MARKET
       NEAR LAKSHMI TALKIES, SIRSI KASABA
       SIRSI, U.K. DISTRICT.
                                             ...APPELLANTS

            (BY SRI SUNIL S. DESAI, ADVOCATE)

AND:

1.   MAHESH NINGAPPA SHEREWAD
     AGE: 56 YEARS, OCC: AGRICULTURE
     R/O: PANIGATTI
     TALUKA: SHIGGAON
     DISTRICT HAVERI.

2.   SRI BHARMAPPA
     S/O. NINGAPPA PUJAR
     AGE: 81 YEARS, OCC: AGRICULTURE
     R/O: PANIGATI, TALUKA: SHIGGAON
     DISTRICT:HAVERI.

3.   SRI GANGAPPA
     S/O. BHARMAPPA PUJAR
     AGE: 48 YEARS, OCC: AGRICULTURE
     R/O: PANIGATTI, TALUKA:SHIGGAON
     DISTRICT: HAVERI.
                                            ...RESPONDENTS

        (BY SRI. RAVI S. BALIKAI, ADVOCATE FOR R1;
                  R2 AND R3 ARE SERVED)

     THIS RFA IS FILED U/S.96 OF CPC A/W. ORDER 41 RULE
1 OF CPC AGAINST THE JUDGMENT AND DECREE DT.
28.3.2006 PASSED IN O.S.NO.31/95 ON THE FILE OF THE
CIVIL JUDGE (SR.DN), HAVERI, PARTLY DECREEING AND
PARTLY DISMISSING THE SUIT FOR PARTITION AND SEPARATE
POSSESSION.

     THIS APPEAL COMING ON FOR FINAL HEARING THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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                                              RFA No. 1509 of 2006


                                 JUDGMENT

Heard the learned counsel appearing for the

appellants and learned counsel appearing for the

respondents.

2. This appeal is filed against the judgment and

decree dated 28.03.2006 passed in O.S.No.31/1995 by

the learned Civil Judge (Sr.Dn.), Haveri in so far as

refusing to grant a decree in respect of suit schedule 2(B)

properties.

3. The factual matrix of the case of the

appellants/plaintiffs before the Trial Court is that their

father had sold the properties belonging to the family

which was not for legal necessity and he was having bad

vices and also committed fraud on the family in selling the

properties. The defendant No.1, who had purchased the

properties took the defence that he is the bonafide

purchaser of the suit part 2(B) property for a valuable

RFA No. 1509 of 2006

consideration as contended in para No.8 of the written

statement.

4. The Trial Court, granted decree in respect of all

other properties, except item No.2(B) of the suit schedule

properties. The issue Nos.2 and 4 framed by the Trial

Court are related to the said aspect and issue No.2 is the

burden cast upon the plaintiffs to prove that the sale deed

executed on 02.07.1994 by defendant No.2 in favour of

defendant No.1 in respect of item No.2(B) property is void

and not binding on the plaintiffs. On the other hand, the

issue No.4 is the burden cast upon the defendant No.1 to

prove that he is a bonafide purchaser of the item No.2(B)

property from defendant No.2 for valuable consideration

without notice as contended in para 8 of his written

statement. It is the contention of the defendant No.1 that

he is the bonafide purchaser of the property in question

and the Trial Court answered issue No.2 as 'negative' and

issue No.4 as 'affirmative', in coming to the conclusion

that he is a bonafide purchaser.

RFA No. 1509 of 2006

5. The main contention of the appellants before

this Court is that the Trial Court has committed an error in

answering issue No.2 as 'negative' and issue No.4 as

'affirmative'. Hence, it requires interference of this Court.

The counsel also would vehemently contend that,

admittedly, the property sold in favour of defendant No.1

is a joint family property and some of the plots are sold

and none of the family members of defendant No.2 joined

hands in selling item No.2(B) of the suit schedule property

in favour of defendant No.1. Hence, it requires

interference of this Court.

6. Per contra, though respondent/defendant No.1

would submit that the Trial Court while answering issue

Nos.2 and 4, discussed in detail with regard to the same

and while answering issue No.4, arrived at the conclusion

that D.W.1 has stated in his evidence that he has not

enquired with the sons of defendant No.2 and also his

legal necessity, but clearly deposed in evidence that

defendant No.2 himself came to him pleading his legal

RFA No. 1509 of 2006

necessity. As such, he has purchased suit schedule 2(B)

properties, as they were standing in his name. It is also

observed that the suit schedule 2(B) properties and other

properties were standing in the name of defendant No.2.

The defendant No.1, believing the words of defendant

No.2 has purchased the suit schedule 2(B) properties for

valuable consideration. The Trial Court, further observed

that, defendant No.2 being the father of plaintiff No.1 and

defendant Nos.3 and 4 in such a capacity as a manager of

the joint family has executed registered sale deed in

favour of defendant No.1. Hence, answered the issue

No.4 as 'affirmative' and the Trial Court has also taken

note of the admissions elicited from the mouth of P.W.1.

Therefore, it is not a case for interfering with the findings

of the Trial Court.

7. Having heard the learned counsel for the

appellants, learned counsel for the respondents and also

on perusal of evidence available on record, the points that

would arise for consideration of this Court are:

RFA No. 1509 of 2006

(i) Whether the Trial Court has committed an error in answering issue No.2 as 'negative' and issue No.4 as 'affirmative', in coming to the conclusion that the defendant No.1 is the bonafide purchaser?

(ii) What order?

Point No.(i)

8. Having heard the respective counsel and also

on perusal of the material available on record, it is not in

dispute that the sale deed was executed in favour of the

defendant No.1 on 02.07.1994. It is also not in dispute

that, out of 25 plots, sale deeds are executed earlier to the

execution of sale deeds on 30.05.1994 in respect of plot

Nos.4, 5 and 6 and 2 plots on 27.06.1994. The plots are

sold in favour of defendant No.1 i.e., Plot Nos.1, 2, 3, 4, 5

and 7 in total seven plots. Admittedly, no doubt, other

family members have not joined their hands in selling the

property in favour of defendant No.1, however, the

defendant No.3 is a consenting witness to the sale deed

executed in favour of defendant No.1.

RFA No. 1509 of 2006

9. It is pertinent to note that, learned counsel for

respondent No.1/defendant No.1 has brought to notice of

this Court para No.5 of the plaint, wherein an averment is

made with regard to the fact that agricultural lands were

converted into 25 non-agricultural sites and the defendant

No.2 sold about 9 sites admitting the sites sold in favour of

defendant No.1. The defendant No.2 had made a

representation to the plaintiffs that the money realised

from the same of the said sites were spent for conversion

of the said agricultural lands and later came to know that

the sale proceeds were not used for the said purpose.

Hence, the pleading is very clear that, in order to convert

the land from agricultural to non-agricultural land, the

father had spent the money.

10. It is also important to note that, an allegation is

made in the plaint that the said amount was not used for

legal necessity and he was having bad vices. Even in para

No.6 of the plaint, it is alleged that there was fraud on the

part of defendant No.2 in selling the suit schedule

RFA No. 1509 of 2006

properties. But, it is pertinent to note that, in the cross-

examination of P.W.1, he categorically admits that, even

after the sale was made in favour of defendant No.1, he

had joined along with his father and brother in selling plot

Nos.5 and 8. He has also admitted that, after filing of the

suit, on 17.04.1999, plot No.19 was sold by himself, his

father and brother in favour of one Veerabadraiah

Matapathi. Hence, it is very clear that, even after filing of

the suit, sale was made in favour of other persons and

P.W.1 and other family members were cordial with the

father. But, allegation is made in the plaint that he played

fraud on the family and the amount was also used for bad

vices and there is no any explanation on the part of P.W.1

in this regard. If there is fraud and the amount was also

not used for family necessity and it was used for bad

vices, what made the P.W.1 to join along with his father

and brother, even subsequent to filing of the suit to sell

the other plots and the Court has to take note of the

conduct of P.W.1 and the father that other plots are sold

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RFA No. 1509 of 2006

subsequent to the filing of the suit. It is also emerged in

the evidence that 25 plots were formed in the said survey

number and the properties were sold. It is also important

to note that, in the sale deed, it is mentioned that the

same was sold to meet the household expenses.

11. When such recital is available in the document

and also having taken note of the conduct of P.W.1, it is

nothing but suit is filed to make wrongful gain. The Trial

Court also, having taken note of the said fact into

consideration, has assigned reasons while answering issue

No.4, considering the material available on record.

12. When such being the case, I do not find any

error committed by the Trial Court in answering issue No.2

as 'negative' and issue No.4 as 'affirmative', in coming to

the conclusion that the defendant No.1 is a bonafide

purchaser.

13. I have already pointed out that the pleadings

are also very clear that, earlier also sites were sold and it

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RFA No. 1509 of 2006

was represented by the father himself that the said

amount was used for conversion of agricultural land to

non-agricultural land. When such being the case, when

admission is available on the part of P.W.1 in the cross-

examination, it is not a fit case to interfere with the

findings of the Trial Court declining to grant share in

respect of item No.2(B) of the suit schedule properties.

Hence, I do not find any merit in the appeal. Accordingly,

I answer point No.(i) as 'negative'.

Point No.(ii)

14. In view of the discussions made above, I pass the following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

ST