Karnataka High Court
Kalyanrao S/O Eranna Malkapgol vs Mahesh @ Mallikarjun S/O Kalyanrao ... on 7 December, 2023
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RSA No. 7408 of 2011
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
REGULAR SECOND APPEAL NO.7408 OF 2011 (DEC/INJ)
BETWEEN:
1. KALYANRAO S/O ERANNA MALKAPGOL,
AGE: 50 YEARS, OCC: GOVT. TEACHER,
R/O: LINGADALLI VILLAGE,
TQ: CHINCHOLI, DIST: GULBARGA.
2. MALKAMMA @ MALKAMMA
W/O KALYANRAO MALKAPGOL
AGE: MAJOR, OCC: HOUSEHOLD,
R/O CHANDAPUR,
TQ: CHINCHOLI, DIST: GULBARGA.
3. MALLIKARJUN, S/O VEERBHADRAPPA MELKUNDI
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O SWAMY VIVEKANANDA NAGAR,
Digitally signed
ALAND ROAD, SHAHA BAZAR, GULBARGA.
by SWETA
KULKARNI ...APPELLANTS
Location: HIGH (BY SRI AJAYKUMAR A.K., ADVOCATE)
COURT OF
KARNATAKA
AND:
1. MAHESH @ MALLIKARJUN
S/O KALYANRAO MALKAPGOL
AGE: 19 YEARS, OCC: STUDENT,
2. KUMARI JYOTI
AGE: 14 YEARS, OCC: STUDENT,
(BOTH MINORS, THROUGH THEIR NATURAL FRIEND
AND GUARDIAN, THEIR NATURAL MOTHER)
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RSA No. 7408 of 2011
3. SHANTABAI
W/O KALYANRAO MALKAPGOL
AGE: 45 YEARS, OCC: NIL,
R/O MAHAGAON,
TQ & DIST: GULBARGA-585103.
...RESPONDENTS
(BY SRI B V JALDE, ADV. FOR R1 & R3;
R2 IS MINOR REPTD. BY R3)
THIS RSA IS FILED U/S.100 OF CPC ALLOW THE ABOVE
REGULAR SECOND APPEAL AND SET ASIDE THE JUDGMENT
AND DECREE DATED 20.08.2010 AND CONFIRMING THE
JUDGMENT AND DECREE DATED 20.08.2009 PASSED BY THE
III ADDL. CIVIL JUDGE (JR.DN.) AND JMFC AT GULBARGA IN
O.S. NO. 246/2007.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Defendant Nos.1 to 3 in O.S.No.246/2007 on the file of
the learned III Additional Civil Judge (Jr.Dn.) and JMFC,
Kalaburagi (hereinafter referred to as the 'Trial Court' for
brevity) is impugning the judgment and decree dated
20.08.2010 passed in R.A.No.58/2010 on the file of the Fast
Track Court-I, at Kalaburagi (hereinafter referred to as the
'First Appellate Court' for brevity), allowing the appeal and
decreeing the suit of the plaintiffs declaring that the suit
property is the ancestral joint family property of plaintiff Nos.1
and 2 and defendant No.1, M.R. entry No.103/2004-05 made in
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favour of defendant No.2 is null and void and not binding on
the plaintiffs, declaring that the registered sale deed dated
06.11.2007 executed by defendant Nos.1 and 2 in favour of
defendant No.3 is also not binding on the plaintiffs, granting
permanent injunction restraining defendant No.3 from
interfering in any way with the possession of the property and
directing the revenue authorities to delete the name of
defendant No.2 in the revenue records.
2. For the sake of convenience, parties are referred to
as per their status and rank before the Trial Court.
3. Brief facts of the case are that, Plaintiff No.1 to 3
filed the suit against the defendants No.1 to 3 seeking
declaration that the property bearing Sy.No.451 measuring
3.18 acre situated at Mahagaon Talluk and Gulbarga District
(hereinafter referred to as the "suit property") is the ancestral
joint family property of the plaintiffs and defendant No.1, to
declare that the sale deed executed by defendant Nos.1 and 2
in respect of the suit property in favour of defendant No.3 is
null and void and not binding on the plaintiffs, to declare that
the entries made in ROR in the name of defendant No.2 is null
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and void and not binding on the plaintiffs, for correction of
entries in the records of rights, by deleting the name of
defendant No.2 and to enter the same in the name of plaintiffs
and defendant No.1 and for perpetual injunction restraining
defendant No.3 from alienating, encumbering or creating any
charge over the suit property. Defendant No.1 is the son of
Veeranna. Plaintiff No.3 is his wife. Plaintiff Nos.1 and 2 are
their children. Therefore, plaintiffs are entitled for share in the
same. Defendant No.2 is not having any exclusive right over
the said property. Plaintiff No.2 being natural guardian mother
of plaintiff Nos.1 and 2 filed the suit for declaration and for
other reliefs as stated above.
4. It is contended that defendant No.1 married plaintiff
No.3 on 29.06.1990 and they have begotten plaintiff Nos.1 and
2. However, defendant No.1 married defendant No.2 about 9
years back and he started ill treating the plaintiffs and had not
taken care of the plaintiffs. Even though after request,
defendant No.1 agreed to provide the maintenance, has not
provided the same to the plaintiffs. Panchayath was also held in
this regard during the year 2003 and it was amicably decided
that defendant No.1 shall pay 1/3rd of his salary every month to
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the plaintiffs. There was a family arrangement in respect of the
property among plaintiffs and defendants and the same was
reduced into writing. As per said family arrangement,
defendant No.1 has not acted upon, and never paid his 1/3rd
salary. Therefore, plaintiffs filed Criminal Miscellaneous Petition
No.32/2007 against defendant No.1 under Section 125 of
Cr.P.C before the Family Court at Gulbarga. It is contended that
suit property is the ancestral joint family property and
defendant No.2 is not having any right, title or interest over the
same. But defendant No.1 behind the back of plaintiff and in
collusion with the revenue authorities, illegally entered her
name in the revenue records. It was obviously for the reasons
to avoid paying maintenance to the plaintiffs.
5. It is contended that defendant No.2 even though
has no right what so ever over the suit property, in collusion
with defendant No.1 got executed the registered sale deed in
favour of defendant No.3 only to deny the rights of plaintiffs.
Said sale deed will not create any right, title or interest in
favour of defendant No.3. The same is not binding on the
plaintiffs. Therefore, plaintiff sought for the relief stated above
against the defendants.
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6. Defendant Nos.1 and 2 have filed the written
statement denying the contentions of the plaintiffs. The
relationship between the parties are admitted. However, it is
contended that Smt. Rathnamma is the wife of Veeranna and
she is the mother of defendant no.1. Kumari Megha @ Jyothi,
daughter of defendant No.1 and 2 and Smt. Sharanamma W/o
Subhashchandra, widowed sister of the defendant No.1
(daughter of Veeranna). They are not impleaded as parties to
the suit. Therefore, the suit is bad for non-joinder of necessary
parties.
7. Plaintiff No.3 started quarreling with defendant No.1
after birth of plaintiff No.1 and for no reason was started living
in her parental house. Even after advise of elder, she was not
willing to return to the matrimonial house even after requests
made by defendant No.1. Therefore, Sy.No.425 measuring 4.7
acre was given to plaintiff No.3 and Sy.No.451 measuring 3.18
acres was given to defendant No.2 to settle the family dispute.
Accordingly, revenue records were mutated in their respective
names. As per the decision of elders in the panchayath,
defendant No.1 is paying monthly maintenance to plaintiff No.3
and also towards educational expenses of the other plaintiffs.
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8. Defendant No.1 challenged the order passed by the
Family Court in Crl.Misc.32/2007. It is contended that
defendant No.1 and Rathnamma have sold the suit property in
favor of defendant No.3 for valid consideration to meet the
family necessities and also to discharge debts. Plaintiffs are not
having any right, title or interest over the same. Therefore,
prayed for dismissal of the suit.
9. After amendment of the plaint, defendant Nos.1
and 2 have filed additional written statement and denied that
defendant No.1 in collusion with revenue authorities got
created mutation entries in the name of defendant No.2.
Therefore, prayed for dismissal of the suit.
10. On the basis of these pleadings, the Trial Court
framed the following issues for consideration:
1) Whether the plaintiffs prove that the suit property is the
ancestral and joint family properties of both plaintiffs and
the defendants No.1?
2) Whether the plaintiffs prove that the sale deed executed
by defendant Nos.1 and 2 in respect of the suit land in a
registered document No.6859/2007-08 in favour of
defendant No.3 is null and void and not binding on the
plaintiffs?
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3) Whether the plaintiffs prove that the entries made in the
ROR in the name of defendant No.2 in respect of the suit
land is null and void and not binding on the plaintiffs?
4) Whether the plaintiffs prove that the plaintiffs and
defendant No.1 are entitled to have their names in ROR
by deleting the name of defendant No.2?
5) Whether the plaintiffs are entitled for an order of
injunction by restraining the defendant No.3 from
alienating and encumbering or creating a charge over the
suit property?
6) Whether the Court fee paid is sufficient?
7) Whether the suit is bad for non-joinder of necessary
parties?
8) What order or decree?
11. Plaintiff No.3 examined herself as PW.1 and got
marked Exs.P.1 to 3 in support of her contention. Defendant
No.1 examined himself as DW.1 and got marked Ex.D1 to 5 in
support of his defence. The Trial Court after taking into
consideration all these materials on record answered issue
Nos.1 to 5 and 7 in the negative and issue No.6 in the
Affirmative and accordingly, dismissed the suit of the plaintiff.
12. Being aggrieved by the same, plaintiffs have
preferred R.A.No.58/2010, the First Appellate Court allowed the
appeal and decreed the suit of the plaintiffs by setting aside the
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impugned judgment and decree passed by the Trial Court.
Being aggrieved by the same, defendants are before this court.
13. Heard Sri Ajayakumar A.K., learned counsel for the
appellants, Sri B.V.Jalde, learned counsel for respondent Nos.1
and 3 and respondent No.2 is minor represented by natural
guardian mother-respondent No.3. Perused the materials on
record, including the Trial Court records.
14. Learned counsel for the appellant contended the
relationship between the parties is admitted. Veeranna, the
father of defendant No.1 was having wife by name Rathnamma.
They were having two children viz., defendant No.1 and
Sharanamma being the daughter. Either Rathnamma or
Sharanamma are not the parties to the suit. When the plaintiffs
are seeking declaration that the suit property is the joint family
property, the suit is bad for non-joinder of necessary parties.
15. He further contended that plaintiff No.3 was given
Sy.No.425 measuring 4.7 acres as per ME No.103/2004-05,
name of plaintiff No.3 was mutated in respect of the said
property. The said property was given as per the decision of
panchayath towards the share of plaintiffs and also towards
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their maintenance. Plaintiffs have not stated anything about
the said property. Defendant No.1 simultaneously entered
name of defendant No.2 in respect of suit property as seen
from Ex.D2 and for legal necessity, defendant Nos.1 and 2 have
sold the suit property in favour of defendant No.3 under the
registered sale deed. Since then, defendant No.3 is in
possession and enjoyment of the same. But the plaintiffs have
not sought for possession of the property. They have satisfied
with the declaration to the effect that property is the ancestral
property. The plaintiffs have also not sought for partition and
separate possession of their respective shares. Under such
circumstances, the Trial Court rightly dismissed the suit of the
plaintiffs. But the Appellate Court committed an error in
decreeing the suit without any basis. Hence, prays for allowing
the appeal in the interest of justice.
16. Per contra, learned counsel for respondents
opposing the appeal submitted that DW.1 categorically
admitted during his cross examination that suit property is the
ancestral property. Therefore, the plaintiffs are entitled for
declaration to that effect. Defendant No.2 being the second
wife was not having any right, title or interest over the suit
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property. But ME No.103/04-05 was came into effect entering
the name of defendant No.2 as owner in respect of the suit
property. Admittedly, there was Crl.Mis.No.32/07 filed by
plaintiff No.3 against defendant No.1 under Section 125 of
Cr.PC. Defendant No.1 has not paid any maintenance. Learned
counsel further submitted that defendant No.3 has never
contested the matter, that shows that it is a collusive sale deed
entered into between the parties without any basis. Therefore,
the First Appellate Court has rightly decreed the suit of the
plaintiff by setting aside the impugned judgment and decree
passed by the Trial Court. No reasons are made out to interfere
with the impugned judgment and decree passed by the Fist
Appellate Court. Hence, prays for dismissal of appeal with
costs.
17. This Court vide order dated 21.01.2014 framed the
following substantial question of law for consideration:
1) "Whether 1st Appellate Court is right in holding
the said suit property is ancestral property,
when no documentary evidence is produced to
establish the same?
2) Whether 1st Appellate Court is right in allowing
the suit for declaring without seeking
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possession of the suit property which is hit by
Section 34 of Specific Relief Act?
3) Whether 1st Appellate Court right in holding
that the suit for declaration is maintainable
when the consent of parties certain property
was allotted to the plaintiffs?
4) Whether 1st Appellate Court is right in holding
that the sister of the defendant No.1 is not a
necessary party to the proceedings, when they
are interested in the suit property and the
defendants have sold the property after
partition among the plaintiff and defendant
Nos.1 and 2?"
18. Perused the materials including the Trial Court and
First Appellate Court records. My answer to the above
substantial question of law is in the 'Negative' for the following:
REASONS
19. It is the specific contention of the plaintiffs that the
suit property is the ancestral joint family property. Defendant
No.1, is examined as DW.1. During his cross-examination,
categorically admitted that it was the ancestral property. No
other documents are produced before the Court by the
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defendants to substantiate their contention that it was not the
ancestral property of defendant No.1.
20. Plaintiffs have filed the suit for declaration to the
effect the suit property is the ancestral property but strangely,
they have not sought for partition and separate possession.
Learned counsel for respondents could not give any reasonable
explanation as to why plaintiffs have not chosen to seek their
share and separate possession, when it is their contention that
defendant No.1 is not paying maintenance. There is absolutely
no reason as to why plaintiffs are satisfied with the relief of
declaration that suit properties are the ancestral joint family
property.
21. Ex.D.2 is an admitted document. As per MR
No.103/2004-05, Sy.No.425/A measuring 4.07 acre was
mutated in the name of Shanta Bai i.e., plaintiff No.3 and
Sy.No.451/B ie., suit property measuring 3.18 acre was
mutated in the name of defendant No.2. The mutation was
certified on 17.06.2005. Now it is the contention of the
plaintiffs that the name of defendant No.2 in respect of suit
property is without any basis and behind their back. But there
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is no explanation as to how name of plaintiff No.3 could be
mutated in the very same mutation in respect of survey
number 425/A measuring 4.07 acres. It is pertinent to note
that it is the defence taken by defendant No.1 that towards the
share of plaintiffs and for their maintenance the property
bearing Sy.No.425/A measuring 4.07 acre was mutated in their
names. Strangely plaintiff No.3 who examined as PW.1 has
never stated anything about this property mutated in her
name. There is also no crossexamination to DW.1 with regard
to the same. Therefore, it is clear that the plaintiffs are
challenging the mutation entry in the name of defendant No.2.
Whereas, they are satisfied with very same mutation entry
mutated in respect of Sy.No.425/A in the name of plaintiff
No.3. There is no other explanation as to why property bearing
Sy.No.425/A was mutated in the name of plaintiff.
22. In the absence of any explanation to Ex.D2, MR
No.103/2004-05 mutating the name of plaintiff No.3 in respect
of Sy.No.425/A measuring 4.07 acres, the contention of the
plaintiffs that defendant No.2 was not having any right under
the very same mutation entry cannot be accepted. Explanation
given by defendant No.1 that the said property was given to
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plaintiff No.3 towards maintenance and share to plaintiff is
quite reasonable and can be accepted.
23. It is admitted that plaintiff No.3 had filed
Crl.Mis.No.32/07 before the Family Court at Gulbarga. But
strangely, neither the plaintiffs nor the defendants produced
any document about the nature of the claim made by plaintiff
No.3 against defendant No.1 and as to what is the order passed
by the Family court in the same.
24. Even if the contention of the plaintiff that defendant
No.2 being the second wife is not having any right, title or
interest over the suit property is to be accepted, the revenue
entry in her name will become inconsequential is to be
accepted, it is to be noted that defendant No.1 along with
defendant No.2 sold the suit property in favour of defendant
No.3 under the registered sale deed dated 06.11.2007. When
the plaintiffs were given other property bearing Sy.No.425/A
measuring 4.07 acres, they cannot have any right, title or
interest over the suit property and they cannot seek declaration
that the suit property the ancestral joint family property and
that the sale deed Ex.P.1 is not binding on them.
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25. It is pertinent to note that the plaintiffs even
though seeking declaration about the suit property have not
chosen to implead Rathnamma W/o Veeranna and her daughter
Sharanamma, who is the sister of defendant No.1. When it is
the contention of the plaintiffs that the suit property is the
ancestral property, they being Cass I heirs are the necessary
parties. But strangely, plaintiffs have not impleaded them nor
sought for partition and separate possession.
26. Plaintiffs even though contended that they are in
joint possession of the suit property, they have not produced
any piece of paper to substantiate their contention. Under the
registered sale deed-Ex.P.1, the suit property is sold in favour
of defendant No.3. The plaintiffs have not sought for possession
of the same. On the other hand, they have sought for
permanent injunction against defendant No.3 from further
alienating, creating charge over the suit property. From all
these facts and circumstances, it is clear that the plaintiffs have
accepted MR No.103/04-05 as per Ex.D2, whereunder,
Sy.No.425/A measuring 4.70 acres was mutated in the name of
plaintiff No.3. But laid a claim in respect of suit property, which
is sold in favour of defendant No.3. In the absence of any
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explanation as to why Sy.No.425/A measuring 4.07 acres was
mutated in the name of plaintiffs, the plaintiffs cannot succeed
in the suit for declaration and other reliefs as sought for. If at
all the plaintiffs are entitled for declaration that suit property is
the ancestral joint family property, they should have sought for
partition and separate possession of their share but they have
neither impleaded all the legal representatives nor they have
sought for any such reliefs. Under such circumstance, I am of
the opinion that plaintiffs are not entitled for any relief. Even
though defendant No.1 admitted that the suit property is the
ancestral property, in view of mutating the name of the plaintiff
No.3 in respect of Sy.No.451/B, I do not find any reason to
grant declaration and other reliefs as sought by the plaintiffs.
27. I have gone through the impugned judgment and
decree passed by the Appellate Court, it had committed an
error in ignoring all these facts and circumstances in allowing
the appeal, decreeing the suit of the plaintiff. The Trial Court on
appreciation of materials on record came to the proper
conclusion and dismissed the suit. Hence, I am of the opinion
that the judgment and decree passed by the Trial Court is liable
to be restored. Hence, I answer substantial questions of law in
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the negative i.e. in favour of the appellants and against the
respondents and proceed to pass the following:
ORDER
1) The appeal is allowed with costs.
2) The impugned judgment and decree dated
20.08.2010 passed in R.A.No.58/2010 on the
file of the learned Fast Track Court - I at
Gulbarga is set aside. Consequently, suit of the
plaintiff is dismissed.
3) The judgment and decree dated 20.08.2009
passed in OS No.246/2007 on the file of III
Addl.Civil Judge and (Jr.Dn.) and JMFC.,
Kalaburagi is restored.
Office is directed to send back records along with copy of
this judgment.
Sd/-
JUDGE
SWK,BH
