Karnataka High Court

Paragouda S/O. Irappa Datawade vs Yallappa S/O. Yamanappa Kuge on 4 January, 2023

Bench: M.G.S. Kamal

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                                                                 RSA No. 6137 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. 6137 OF 2012 (PAR)

                               BETWEEN:

                                     SHIR. PARAGOUDA S/O. IRAPPA DATAWADE
                                     AGE: 54 YEARS, OCC: AGRICULTURE,
                                     R/O. NANDIKURALI, TQ: RAIBAG,
                                     DIST: BELGAUM.
                                                                             ...APPELLANT
                               (BY SRI. DINESH M.PATIL AND SRI. B.C.KAMBLI, ADVOCATES)

                               AND:

                               1.    SHRI. YALLAPPA S/O. YAMANAPPA KUGE
                                     AGE: 48 YEARS, OCC: AGRICULTURE,
                                     R/O. MEKHALI, TQ: RAIBAG,
                                     DIST: BELGAUM - 591317.

                               2.    SHRI. RAMA S/O. YAMANAPPA KUGE
                                     AGE: 39 YEARS, OCC: AGRICULTUREHM
                                     R/O. MEKHALI, TQ: RAIBAG,
                                     DIST: BELGAUM - 591317.
            Digitally signed
            by ROHAN
            HADIMANI T
ROHAN
T
         Location: HIGH
HADIMANI COURT OF
         KARNATAKA
                               3.    SMT. GOURAWWA W/O. MARUTI KUGE
         DHARWAD
            Date: 2023.01.13
            11:50:26 +0530           AGE: 54 YEARS, OCC: HOUSEHOLD WORK,
                                     R/O. MEKHALI, TQ: RAIBAG,
                                     DIST: BELGAUM - 591317.

                               4.    SHRI. ASHOK S/O. MARUTI KUGE
                                     AGE: 24 YEARS, OCC:AGRICULTURE,
                                     R/O. MEKHALI, TQ: RAIBAG,
                                     DIST: BELGAUM - 591317.
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                                 RSA No. 6137 of 2012


5.   SHRI. SUBHASH S/O. MARUTI KUGE
     AGE: 22 YEARS, OCC:AGRICULTURE,
     R/O. MEKHALI, TQ: RAIBAG,
     DIST: BELGAUM - 591317.

6.   SHRI. SIDDAPPA S/O. MARUTI KUGE
     AGE: 20 YEARS, OCC:AGRICULTURE,
     R/O. MEKHALI, TQ: RAIBAG,
     DIST: BELGAUM - 591317.

7.   SHRI. YALLAPPA S/O. MARUTI KUGE
     AGE: 18 YEARS, OCC:AGRICULTURE,
     R/O. MEKHALI, TQ: RAIBAG,
     DIST: BELGAUM - 591317.

8.   SMT. AKKAVVA W/O. SHIDRAM DESAI
     AGE: MAJOR, OCC: HOUSEHOLD WORK,
     R/O. MEKHALI, TQ: RAIBAG,
     DIST: BELGAUM - 591317.

9.   SMT. SIDDAVVA W/O. MAHADEV NAIK
     AGE: MAJOR, OCC: HOUSEHOLD WORK,
     R/O. SANKANATTI, TQ: ATHANI,
     DIST: BELGAUM - 591304.
                                       ...RESPONDENTS
(BY SRI. SANTHOSH B.MALAGOUDAR, ADV. FOR R1 AND R2;
 R3 TO R9 ARE SERVED)

     THIS RSA IS FILED UNDER SECTION 100 OF THE CPC,
1908 AGAINST THE JUDGMENT AND DECREE DATED
19.07.2012 PASSED IN R.A.NO.245/2008 ON THE FILE OF THE
SENIOR CIVIL JUDGE & JMFC, RAIBAG, ALLOWING THE
APPEAL, FILED AGAINST THE JUDGMENT DATED 14.02.2001
AND THE DECREE PASSED IN O.S.NO.110/1997 ON THE FILE
OF THE ADDL. CIVIL JUDGE, JR.DN., RAIBAG, DISMISSING THE
SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

     THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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                                      RSA No. 6137 of 2012


                         JUDGMENT

Present appeal is filed by defendant No.6 aggrieved

by the judgment and order dated 19.07.2012 passed in

R.A.No.245/2008 on the file of the Senior Civil Judge and

JMFC, Raibag (hereinafter referred to as the 'First

Appellate Court') in and by which the First Appellate Court

by allowing the said appeal set aside the judgment and

decree dated 14.02.2001 passed in O.S.No.110/1997 on

the file of the learned Additional Civil Judge, Jr.Dn., Raibag

(hereinafter referred to as the 'Trial Court') and decreed

the said suit allotting ½ share and separate possession in

the suit schedule property in favour of the plaintiff.

2. The aforesaid suit in O.S.No.110/1997 was filed

by the plaintiffs/respondents No.1 and 2 seeking relief of

partition and separate possession in respect of the suit

properties namely lands bearing Sy.No.69/1A/1, 69/1B,

70/3 and 50/3 (suit properties) all situated within the

village limits of Mekhali village Raibag taluk, on the

premise the suit properties were the joint family properties

RSA No. 6137 of 2012

of the plaintiffs and the defendants. That the plaintiffs and

the defendants have been enjoying the properties and that

there was no actual partition and the defendants No.2 and

5 taking undue advantage of the name of the defendant

No.1 appearing in the records of rights are denying the

right of title of the plaintiffs. Thus, the plaintiffs entitled for

½ share in the property.

3. Defendant No.1 had filed written statement

contending inter alia that the suit of the plaintiffs was not

maintainable as the plaintiffs had not joined necessary

parties; that there was a partition of the property between

the plaintiff and the defendants long back and the revenue

records were accordingly mutated; Suit properties were no

longer joint family properties and there was no cause of

action to file the suit; that the plaintiffs had sold their

lands without the consent of the defendants and the suit

was filed only to harass the defendants.

4. Considering the pleadings, the Trial Court

framed the following issues:

RSA No. 6137 of 2012

"1. Whether the plaintiffs prove that the suit schedule properties are joint family properties of the plaintiffs and defendants and hence they have got ½ share in the suit property?

2. Whether the plaintiffs further prove that plffs and defendants names have been entered in R of R as per the family arrangement for the convenience and for better cultivation of suit lands?

3. Whether defendants prove that partition regarding suit lands between plaintiffs and defendants have already taken place long back?

4. Whether defendants further prove that suit is bad for non-joinder necessary parties?

5. Whether there is a cause of action for this suit?

6. What order ordecree?"

5. Plaintiff No.2 examined himself as PW.1 and

another witness as PW.2 and exhibited 9 documents

marked as Exs.P1 to P9. Defendant No.2 examined himself

as DW.1 and exhibited 10 documents marked as Exs.D1 to

D10.

6. Defendants No.6 (appellant herein) and 8 were

impleaded subsequently and were placed exparte on the

premise of they not appearing despite service of notice.

RSA No. 6137 of 2012

The Trial Court answered the Issues No.1, 2, and 4 in the

negative and Issues No.3 and 5 in the affirmative and

consequently dismissed the suit of the plaintiffs with costs.

Being aggrieved by the same, the plaintiffs filed regular

appeal before the First Appellate Court in

R.A.No.245/2008. Considering the grounds urged in the

appeal memo, the First Appellate Court framed following

points for its consideration:

"1) Whether the trial court has not properly appreciated the oral and documentary evidence of the parties?

2) Whether the judgment and decree of the trial court is perverse and illegal?

3) Whether the judgment and decree under appeal needs modification at the hands of this Court?

4) What order?"

7. While answering Points No.1 to 3 in the

affirmative, the First Appellate Court allowed the appeal

and allotted ½ share and separate possession in the suit

properties to the plaintiffs. Even in the said regular appeal

the defendant No.6 (appellant herein) has been placed

RSA No. 6137 of 2012

exparte. Being aggrieved by the aforesaid judgment and

order passed by the First Appellate Court, the defendant

No.6 has filed the present appeal.

8. Sri. Dinesh M.Patil, learned counsel for the

appellant/ defendant No.6 reiterating the grounds urged in

the memorandum of appeal submits that at the outset the

very service of notice in the suit as well as in the regular

appeal was not in accordance with law thereby the

appellant/ defendant No.6 was prevented from contesting

the suit. It is his submission that the plaintiff has

suppressed the earlier partition between the plaintiff and

defendants No.1 to 5. Had that fact been brought on

record, the result of the regular appeal would have been

otherwise. That the appellant/ defendant No.6 purchased

one of the suit properties namely Sy.No.69/1B measuring

3 acres 37 guntas situated in Mekhali village, Raibag taluk

from defendants No.3 to 5. The defendants No.3 to 5 had

sold the suit property to the appellant/defendant No.6 for

a valuable consideration as absolute owners thereof. That

RSA No. 6137 of 2012

in view of the aforesaid judgment and order passed by the

First Appellate Court, partitioning the property allotting ½

share to the plaintiff, the valuable rights of

appellant/defendant No.6 have been deprived. He further

contends that even the First Appellate Court has while

answering Point No.1 observed that there was a separate

entry of mutation of the names of the plaintiffs and

defendants and also that the defendants and the plaintiffs

were residing separately. That in view of above said

observation of the Trial Court, the First Appellate Court

could not have come to the conclusion that there was no

partition. Hence, he submits that the aforesaid factual

aspects of the matter give arise to a substantial question

of law.

9. Heard learned counsel for the appellant and

perused records.

10. It is not in dispute that the appellant/defendant

No.6 purchased 3 acres 37 guntas in Sy.No.69/1B from

defendants No.3 to 5. It is also not in dispute that the

RSA No. 6137 of 2012

property originally belonged to the family of plaintiffs and

defendants No.1 to 5. Though defendants had contended

that there was an earlier partition and the plaintiffs and

the defendants had thus secured the joint family status

and were residing separately, the First Appellate Court

while appreciating the evidence has held that though the

revenue entries suggest the names of the parties having

been mutated in the revenue records, the same would not

mean that there was a partition and that parties had either

acquired or extinguished their title over the properties.

The First Appellate Court has also taken into consideration

that the defendants had not produced any acceptable

evidence in the nature of the document evidencing

partition between the parties in accordance with law.

11. The First Appellate Court also has taken note of

the fact that though defendants claimed that there was a

partition, they had not even given a specific date, month

or the year in which purported partition had taken place

except making a vague plea. As regards the admission of

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RSA No. 6137 of 2012

PW.1 with regard to they staying separately, the First

Appellate Court has also taken note of the fact that mere

admission by PW.1 that they were staying separately

would not mean or sufficient to hold that there was a

partition between the plaintiff and the defendants by

metes and bounds. Staying separately would not mean

severance of joint family property status as rightly taken

note of by the First Appellate Court. The entitlement of the

plaintiff to the extent of suit property having been up held

by the First Appellate Court the same has remained

unchallenged by defendant Nos.1 to 5.

12. It is settled position of law that a purchaser of

the property from a coparcener or a member of a joint

family would not get rights and entitlement better than

that of such member of the family. He can only claim his

right in respect of share of the property, that would be

allotted to his vendor.

"44. Transfer by one co-owner.-- Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein,

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RSA No. 6137 of 2012

the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred.

Where the transferee of a share of a dwelling- house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house."

13. In view of the aforesaid provision of law, the

appellant/defendant No.6, who claims to have purchased

the property measuring 3 acres 37 guntas from defendant

Nos.3 to 5, would be entitled to workout equities in

accordance with law or in the final decree proceedings that

may be instituted in furtherance to the preliminary decree.

14. Learned counsel for the appellant today has

filed an affidavit of the appellant/defendant No.6, wherein

it is sworn that final decree proceedings have not been

filed till date. The said affidavit is taken on record.

15. In view of the aforesaid position of law, that is

the entitlement of a purchaser from a member of the