Karnataka High Court
Malakappa S/O. Shivaputra Mudavi vs Ramchandra S/O. Vitoba Salunke on 4 January, 2023
Bench: M.G.S. Kamal
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RSA No. 5353 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 5353 OF 2012 (DEC/INJ)
BETWEEN:
1. SHRI. MALAKAPPA S/O. SHIVAPUTRA MUDAVI,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O. KATRAL, TQ: ATHANI, DIST: BELGAUM.
SINCE DECEASED LR's OF APPELLANT,
1.A SMT. MAHADEVI W/O. LATE MALAKAPPA MUDAVI,
AGE: 69 YEARS, OCC: HOUSEHOLD,
R/O. KATRAL, TAL: KAGWAD,
DIST: BELAGAVI.
1.B SMT. CHANDRAWWA W/O. LATE MALAKAPPA MUDAVI
AGE: 67 YEARS, OCC: HOUSEHOLD,
R/O. KATRAL, TAL: KAGWAD,
DIST: BELAGAVI.
1.C SHRI. REVANASIDDA S/O. LATE MALAKAPPA MUDAVI
AGE: 43 YEARS, OCC: AGRUICULTURE,
R/O. KATRAL, TAL: KAGWAD,
Digitally signed by
ROHAN
DIST: BELAGAVI.
HADIMANI T
ROHAN Location: HIGH
HADIMANI COURT OF
KARNATAKA
T DHARWAD
Date: 2023.01.13
11:49:51 +0530
1.D SHRI. MAHANTESH S/O. LATE MALAKAPPA MUDAVI
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O. KATRAL, TAL: KAGWAD,
DIST: BELAGAVI.
1.E SHRI. SANJAY S/O. LATE MALAKAPPA MUDAVI,
AGE: 35 YEARS, OCC: AGRICULTURE,
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RSA No. 5353 of 2012
R/O. KATRAL, TAL: KAGWAD,
DIST: BELAGAVI.
...APPELLANTS
(BY SRI. VISHWANATH V.BADIGER, ADVOCATE)
AND:
1. SHRI. RAMCHANDRA S/O. VITOBA SALUNKE
SINCE DECEASED BY HIS LR's,
1.A SMT. SHANTABAI W/O. RAMCHANDRA SALUNKE,
AGE: 69 YEARS, OCC: HOUSEHOLD,
R/O. KAVATHE-MAHANKAL, DIST: SANGLI.
1.B SHRI. DHONDIBA S/O. RAMCHANDRA SALUNKE
SINCE DECEASED BY HIS LR's
1B.1 SMT. SUNITA W/O. DHONDIRAM SALUNKE,
AGE: 51 YEARS, OCC: HOUSEHOLD,
R/O. KOGANALLI, TQ: KAVATHE-MAHANKAL,
DIST: SANGLI.
1B.2 SMT. JAYASHREE BEDAG,
AGE: 27 YEARS, OCC:AGRICULTURE,
R/O. ARAG, TQ: MIRAJ, DIST: SANGLI.
1B.3 SRI. DAJIRAO S/O. DONDIRAM SALUNKE
AGE: 23 YEARS, OCC: AGRICULTURE,
R/O. KOGANALLI, TQ: KAVATHE-MAHANKAL,
DIST: SANGLI.
1B.4 MISS. ASHWINI D/O. DONDIRAM SALUNKE,
AGE: 19 YEARS, OCC: NILL,
R/BY. HER M/G. SMT. SUNITA SALUNKE,
R/O. KOGANALLI, TQ: KAVATHE-MAHANKAL,
DIST: SANGLI.
1.C GANAPATI S/O. RAMCHANDRA SALUNKE
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O. KOGANALLI, TQ: KAVATHE MAHANKAL,
DIST: SANGLI.
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RSA No. 5353 of 2012
1.D SRIPATI S/O. RAMCHANDRA SALUNKE
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O. KOGANALLI, TQ: KAVATHE-MAHANKAL,
DIST: SANGLI.
1.E BALASAHEB S/O. RAMCHANDRA SALUNKE
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O. KOGANALLI, TQ: KAVATHE-MAHANKAL,
DIST: SANGLI.
2. SHANTABAI W/O. JAKKAPPA RASAL
AGE: 51 YEARS, OCC: KIRANA BUSINESS,
R/O. DESHING, TQ: KAVATHE-MAHANKAL,
DIST: SANGLI.
3. PRAKASH S/O. JAKAPPA RASAL,
AGE: 30 YEARS, OCC: COOLIE,
R/O. DESHING, TQ: KAVATHE-MAHANKAL,
DIST: SANGLI.
4. SHINDU S/O. JAKAPPA RASAL
AGE: 27 YEARS, OC: COOLIE,
R/O. DESHING, TQ: KAVATHE-MAHANKAL,
DIST: SANGLI.
5. KUMARI. RUPAVATI D/O. JAKAPPA RASAL
AGE: 25 YEARS, OCC: HOUSEHOLD WORK,
R/O. DESHING, TQ: KAVATHE-MAHANKAL,
DIST: SANGLI.
...RESPONDENTS
(BY SRI. AHAMED ALI J.RAHIMANSHAH, ADV. FOR
R1A, R1B(1 TO 4) AND R1(C AND D);
R1E - STANDS ABATED;
SRI. MADANMOHAN M.KHANNUR, ADV. FOR R2 TO R5)
THIS RSA IS FILED UNDER SECTION 100 KOF CPC
AGAINST THE JUDGMENT AND ECREE DATED 12.12.2011
PASSED IN RA NO.41/2007 ON THE FILE OF SENIOR CIVIL
JUDGE, ATHANI, ALLOWING THE APPEAL FILED AGAINST THE
JUDGMENT DATED 05.04.2007 AND THE DECREE PASSED IN
OS NO.143/1991 ON THE FILE OF ADDL. CIVIL JUDGE (JR.DN.)
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RSA No. 5353 of 2012
AND JMFC., ATHANI, DISMISSING THE SUIT FILED FOR
DECLARATION INJUNCTION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Present appeal filed by the defendant No.6 aggrieved
by the judgment and order dated 12.12.2011 passed in
R.A.No.41/2007 on the file of the learned Senior Civil
Judge, Athani, (hereinafter referred to as the 'First
Appellate Court'), in and by which the First Appellate Court
while allowing the appeal set aside the judgment and
decree dated 05.04.2007 passed in O.S.No.143/1991 on
the file of the learned Additional Civil Judge (Jr.Dn.) and
JMFC, Athani (hereinafter referred to as the 'Trial Court').
2. The aforesaid suit in O.S.No.143/1991 was
originally filed by one Sri. Ramachandra Vithoba
Salunke/plaintiff for relief of declaration of his ownership
over the suit property and consequential relief of
permanent injunction against the defendants.
RSA No. 5353 of 2012
3. It is the case of the plaintiff that suit property
bearing R.S.No.72/3 of Katral Village of Athani Taluk
measuring about 4 acres 15 guntas was belonging to one
Jakanna also known as Jakkappa Rama Rasal of Katral
village. That the said Jakkappa in exercise of his absolute
ownership over the suit property had sold the same to the
plaintiff for a valuable sale consideration by executing a
registered deed of sale dated 22.05.1986 and possession
was also delivered. In furtherance thereof, name of the
plaintiff was mutated in the revenue records. That the
plaintiff thus, has been in possession and enjoyment of the
suit schedule property as an absolute owner thereof. That
the defendant No.1 claiming to be the wife of said
Jakkappa and defendants No.2 to 4 claiming to be the
children of Jakappa with an intention of knocking of the
suit property got their names mutated in the revenue
records without the knowledge of the plaintiff. That the
defendants based on the illegal entries in the revenue
records had even attempting to alienate the suit property
RSA No. 5353 of 2012
constraining the plaintiffs to file the above suit for
declaration and injunction. During the pendency of the
suit, the original plaintiff passed away leaving behind his
legal representatives who have been brought on record as
plaintiffs No.1A to 1E.
4. Defendant No.1 filed written statement on her
behalf and also on behalf of defendants No.2 to 4 denying
the plaint averments. It is contented that the said
Jakkappa was mentally abnormal and was having stunt
growth of the brain and thereby he was not in a position to
understand the things properly and even though he was
more aged one, he was behaving like a child of 8 to 10
years old. The power of attorney holder of the plaintiff who
was looking after the said Jakkappa was always hatching a
plan to knock off the property of the said Jakkappa and in
furtherance thereof, had created the said deed of the sale
in favour of plaintiff. That under the circumstances, the
plaintiff did not derive any right, title or interest over the
suit property. As such, the said deed of sale was illegal
RSA No. 5353 of 2012
and void. It was also contended that if at all the deed of
sale was held to be valid, it would bind only to the extent
of 1/5th of the share and not beyond.
5. Defendant No.6 who was impleaded
subsequently also filed written statement contending that
the defendants No.1 to 5 are the wife and children of the
said Jakkappa and that they had executed a deed of sale
dated 25.03.1992 in his favour by receiving a sale
consideration of Rs.60,000/- by executing a deed of sale.
Thus, defendant No.6 who purchased the suit property by
paying the consideration from the rightful owners is the
actual owner of the suit property and he has been in
possession and enjoyment of the same. Hence, sought for
dismissal of the suit.
6. Considering the pleadings, the Trial Court
framed the following issues:
"1) Whether the plaintiff proves that he has purchased the
suit land from Jakkanna @ Jakkappa Rama Rasal on
22.5.1986 for the consideration of Rs.40,000/- under
a registered sale deed?
2) Whether the defendant proves that the sale deed
dated 22.5.1986 concocted and not acted upon?
RSA No. 5353 of 2012
3) Whether the defendant proves that the said sale deed
is void for the reasons shown in para 6 of the W.S.?
4) Whether the defendant prove that suit property was
the joint family property of Jakkappa and defendants
1 to 4?
5) Whether the plaintiff proves the alleged obstruction?
6) To what relief the partition are entitled?
7) To what order or decree?"
7. Plaintiff examined one Maruti Dondiram Kashid
and Lank parasuram Rasal as PWs.1 and 2 and exhibited
14 documents marked as Exs.P.1 to P14. On behalf of the
defendants, defendant No.6 examined himself as DW.1
and one Krishanaji Despande has been examined as DW.2
and exhibited 17 documents marked as Exs.D.1 to D17.
The Trial Court on appreciation of the evidence answered
Issues No.1, 3 and 5 in the negative and Additional Issue
No.1, Additional Issue No.2, Issues No.2 and 4 in
affirmative and consequently dismissed the suit holding
that the plaintiff has failed to establish that he had
acquired the title of the property in accordance with law.
Being aggrieved by the same the plaintiff preferred an
RSA No. 5353 of 2012
appeal in R.A.No.41/2007 on the file of the First Appellate
Court. Considering the grounds urged in the appeal
memorandum, the First Appellate Court framed the
following points for consideration:
"1) Whether appellants prove that they are the absolute
owner and in possession of the suit property on the
date of suit and also alleged interference of the
defendants?
2) Whether the respondent No.5 prove that he is bona-
fide purchaser of the suit property?
3) Whether the impugned order passed by the trial judge
is perverse and interference by this Court is required?
4) What order or decree?"
8. The First Appellate Court on re-appreciation of
the evidence, passed the impugned judgment and order
allowing the appeal and set aside the judgment and decree
passed by the Trial Court declaring the plaintiffs to be the
absolute owners and in possession of the suit property and
also passed a decree of permanent injunction restraining
the defendants from interfering with peaceful possession
of the plaintiffs and also from alienating or creating charge
encumbrance over the suit property. Being aggrieved by
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RSA No. 5353 of 2012
the same, the defendant No.6 is before this Court in the
second appeal.
9. Sri. Vishwanath V.Badiger, learned counsel for
the appellant reiterating the grounds urged in the
memorandum of appeal submits that defendant No.6 has
not been properly served with the notice of the appeal
filed before the First Appellate Court, thus, he was
deprived of an opportunity to contest the suit. It is
contended that the defendant No.6 purchased the suit
property in the year 1992 from defendants No.1 to 4 for a
valuable sale consideration and his name having been
entered in the revenue records, his title and possession
has become full and complete. That the First Appellate
Court has not taken this aspect of the matter for its
consideration. The First Appellate Court also did not take
into consideration Ex.P.11 the proceedings in criminal
revision proceedings which would establish the fact that
Jakkappa was insane and was not having capacity to
execute the deed of sale in favour of the plaintiffs. The
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RSA No. 5353 of 2012
First Appellate Court has failed to appreciate that taking
advantage of mental abnormality of the Jakkappa plaintiff
had fabricated the deed of sale in the year 1986. It is also
contended that defendants No.1 to 4 are also entitled for
1/5th share in the suit property, as such Jakkappa could
not have sold the entire property. That there was an
admission on the part of the plaintiffs regarding illness of
Jakkappa. The aforesaid overwhelming evidence available
on record has not been considered by the First Appellate
Court. Thus, the judgment and order passed by the First
Appellate Court is perverse giving arise to a substantial
question of law.
10. Heard learned counsel for the appellant and
perused records.
11. There is no dispute that the fact that the suit
property belonged to Jakkappa. There is also no dispute of
the fact that the said Jakkappa had executed the deed of
sale dated 22.05.1986 and registered the same conveying
the suit property in favour of the plaintiff. The name of the
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RSA No. 5353 of 2012
plaintiff was mutated in the revenue records of Kathral
village. Admittedly, the said deed of sale has neither been
challenged nor set aside till date by any Court of
competent jurisdiction. Though in the written statement
defendants No.1 to 4 had contented that Jakkappa was
mentally abnormal, they have not entered the witness box
or led any evidence in this regard. It is admitted that
defendant No.6 purchased the suit property during the
pendency of the suit filed by the plaintiff. The suit of the
plaintiff was filed on 05.04.1991 while the defendant No.6
claimed to have purchased the property of defendants
No.1 to 4 on 25.03.1992. Except producing Ex.D11 which
appears to be an order sheet maintained in criminal
proceedings in the Court of the Sessions in Belagavi and
Ex.D17, no other evidence has been produced. Based on
the said two documents, the learned counsel for the
appellant submits that the two documents are sufficient
enough to establish that Jakkappa was mentally abnormal
and was incapable of executing the documents. Perusal of
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RSA No. 5353 of 2012
the said documents at Ex.D.11 and Ex.D17, Ex.D.11
reveals that the said document is a Criminal Register
(Revision Petition) issued by the District Court, Belgaum.
The said document further reveals that a criminal revision
petition in C.R.No.937/1994 has been filed by Smt.
Shantabai W/o. Jakkappa against Maruti Dondiram Kasid
and another in which the parties have been reserved
liberty to approach the competent Civil Courts for their
remedies. Ex.D.17 is a copy of Register of Miscellaneous
Cases which is also proceedings between the said
Shantabai and Maruti Dondiram Kasid and even there the
parties have been directed to appear before the competent
Court. Accept the aforesaid two documents, no other
material is produced to address the contention of Jakappa
suffering from mental abnormality. As noted above, the
aforesaid Exs.D.11 and D.17 did not throw any light to
substantiate the contention of the defendant. The First
Appellate Court had taken note of this matter. That apart
the deed of sale of 1986 which has been executed has
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RSA No. 5353 of 2012
remained unchallenged. The Trial Court without taking into
consideration this aspect of the matter has dismissed the
suit which was rightly reversed by the First Appellate
Court. The appellant who is subsequent purchaser that too
during the pendency of the suit would be bound by the out
come of the suit. Needless to mention that the sale
transaction between the defendants No.1 to 4 and
defendant No.6 is subject to doctrine of lis pendency, the
First Appellate Court taking note of these legal and factual
aspects of the matter and in the considered view of this
Court, has come to just conclusion and no illegality or
irregularity can be attributed to the same. There is no
substantial question of law which would give rise to
consider this appeal. Accordingly, the appeal is dismissed.
Sd/-
JUDGE
RH
