Sri Narashimha Murthy vs Puttanarasaiah
2023 Latest Caselaw 533 Kant

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      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 9TH DAY OF JANUARY, 2023

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH


                  R.S.A.NO.856/2020 (PAR)

BETWEEN

1. SRI NARASHIMHA MURTHY
   AGED ABOUT 59 YEARS
   S/O LATE PUTTANARASHIAH
   R/AT BALENAHALLI VILLAGE
   MADABALA HOBLI
   MAGADI TALUK-561201

2. SRI RAJA
   AGED ABOUT 54 YEARS
   S/O LATE PUTTANARASHIAH
   R/AT BALENAHALLI VILLAGE
   MADABALA HOBLI
   MAGADI TALUK-561201
                                            ...APPELLANTS
(BY SMT. ANUPAMA M V, ADVOCATE)

AND

      PUTTANARASAIAH
      SINCE DEAD REPRESENTED BY HIS LRS.

1.    SMT. NINGAMMA
      AGED ABOUT 80 YEARS
      W/O LATE PUTTANARASAIAH
      BALENAHALLI VILLAGE
                              2



     MADABALA HOBLI-561201
     MAGADI TALUK

2.   SMT. LATHAMANI
     AGED ABOUT 53 YEARS
     W/O LATE B P CHANDRAPPA
     7TH CROSS, WATER SERVICE ROAD
     BEHIND LAKSHMI VENAKTESHWARA
     THEATER, DODDAGOLLARAHALLI
     BANGALORE-560 056

3.   SMT. VINUTHA
     AGED ABOUT 33 YEARS
     D/O LATE B P CHANDRAPPA
     7TH CROSS, WATER SERVICE ROAD
     BEHIND LAKSHMI VENAKTESHWARA
     THEATER, DODDAGOLLARAHALLI
     BANGALORE-560 056

4.   MISS. VINUTHA
     AGED ABOUT 30 YEARS
     D/O LATE B P CHANDRAPPA
     7TH CROSS, WATER SERVICE ROAD
     BEHIND LAKSHMI VENAKTESHWARA
     THEATER, DODDAGOLLARAHALLI
     BANGALORE-560 056


5.   SMT. LAKSHMIDEVAMMA
     AGED ABOUT 52 YEARS
     W/O SRI KRISHNAPPA
     VINAYAKANAGARA
     C/O MESTRI NARASHIMAIAH BUILDING
     NEAR LAKSHMI VALLABHA
     KALYANA MANTAPA
     MAGADI MAIN ROAD
     BANGALORE - 560 056
                            3



6.   SRI B P RAMAKRISHNA
     AGED ABOUT 47 YEARS
     S/O LATE PUTTANARASAIAH
     MAHADESHWARA TEMPLE ROAD
     RANGANATHAPURA, KAMAKSHIPALYA
     BANGALORE-560 079

7.   SRI B P SURESH
     AGED ABOUT 45 YEARS
     S/O LATE PUTTANARASAIAH
     NO.80, MUNESHWARANAGARA
     1ST CROSS, 1ST MAIN ROAD
     LAGGERE
     BANGALORE-560 058

8.   SRI SHIVALINGAIAH
     AGED ABOUT 65 YEARS
     S/O SRI ANANDAPPA
     R/AT BALENAHALLI VILLAGE
     MADABALA HOBLI
     MAGADI TALUK - 561 201

9.   SRI B N LINGE GOWDA
     S/O ANANDAPPA
     R/AT BALENAHALLI VILLAGE
     MADABALA HOBLI
     MAGADI TALUK-561 201
                                      ... RESPONDENTS

     THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 23.09.2019
PASSED IN R A NO.81/2008 ON THE FILE OF THE 1ST
ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA
AND ETC.

    THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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                         JUDGMENT

This matter is listed for admission. Heard the learned

counsel appearing for the appellants.

2. This appeal is filed challenging the judgment and

decree dated 23.09.2019 passed in R A No.81/2008 on the file of

the 1st Additional District and Sessions Judge, Ramanagara.

3. The factual matrix of the case of the plaintiffs before

the Trial Court that the suit schedule properties are the ancestral

and joint family properties and they are entitled for separate

share and possession. In pursuance of suit filed by the plaintiffs,

the defendants appeared and filed the written statement

contending that except item No.3 of the suit schedule properties,

other suit schedule properties are sold for the family necessity

and also taken the contention that suit is barred by limitation.

The plaintiffs in order to prove their case, examined first plaintiff

as PW1 and also examined other four witnesses as PW2 to PW5

and got marked the documents at Ex.P1 to P32. On the other

hand, the defendants examined the witnesses as DW1 to DW9

and got marked the documents at Ex.D1 to D24.

4. The Trial Court after considering both the oral and

documentary evidence allowed the suit in part granting 2/6th

share and separate possession of the suit schedule properties

except item Nos.1, 2(a), (b), (d) and (e) of suit schedule

properties. Being aggrieved by granting of decree of partition in

granting partial share, an appeal was filed before the First

Appellate Court by the plaintiffs contending that the Trial Court

has committed an error in not granting the decree in respect of

item Nos.1, 2(a), 2(b), 2(d) and 2(e) of the suit schedule

properties in coming to the conclusion that the said properties

are sold for family necessities. The Trial Court also committed

an error in coming to the conclusion that the defendant No.6 is

the bonafide purchaser in purchasing of those properties and the

First Appellate Court also on re-appreciation- of both the oral

and documentary evidence dismissed the appeal and before

dismissing the appeal also an additional issue also framed with

regard to whether the defendant/respondent No.4 prove that

Sy.No.18/4 of Madabal Hobli, Sonnenahalli Village is self

acquired property and the said issue was answered as

affirmative in coming to the conclusion that it is a self acquired

property of defendant No.4. Hence, the present appeal is filed by

the plaintiffs/appellants before this Court.

5. The counsel appearing for the appellants would

vehemently contend that the very recording of evidence by the

First Appellate Court and giving finding is erroneous and there

were 5 sale deeds by the same person and the sale deeds are

also in respect of ancestral and joint family properties by the

kartha of the Hindu undivided family and without proving that

the sale was made only for the family necessities, both the

Courts have came to the conclusion that the sale was made for

the family necessities and defendant No.6 is a bonafide

purchaser hence, the very approach of both the Courts are

erroneous and perverse hence, it requires interference.

6. Having heard the learned counsel appearing for the

appellants and also on perusal of the material on record it

discloses that the Trial Court having considered the material on

record framed the issued with regard to whether the plaintiffs

are entitled for separate share and possession in the suit

schedule properties, if so, what extent and whether the

defendants prove that except item No.3, all other properties

were sold by them towards family necessities.

7. The main contention of the plaintiffs that the very

approach of the Trial Court is erroneous and the First Appellate

Court also committed an error in framing an additional issue with

regard to the claim of the defendant No.4 that Sy.No.18/4 of

Madabal Hobli, Sonnenahalli Village is self acquired property of

defendant No.4 and also the First Appellate Court committed an

error in coming to the conclusion that the sale was made for the

family necessity. Having considered the material on record it

discloses that both the Courts have taken note of the evidence

produced before the Courts and came to the conclusion that the

properties are belongs to the family and the same is not

disputed and also it is not in dispute that the property was sold

by defendant No.1, but the very contention of the appellants

that it was not for legal necessity and he was addicted to bad-

vices but in the evidence it is emerged that all of them were

living together and apart from that PW1 and PW4 who have been

examined before the Trial Court to substantiate their case,

themselves have admitted that defendant No.1 was not having

any bad-vices and taking note of the evidence on record, Trial

Court comes to the conclusion that sale made by the kartha of

the family is for the family necessity. The First Appellate Court

also having considered the grounds urged by the

appellants/plaintiffs that the Trial Court has committed an error

and framed the point for consideration with regard to whether

the plaintiffs proved that themselves and defendant Nos.1 to 5

are the joint family members and the suit schedule properties

are the ancestral and joint family properties and First Appellate

Court also given the finding that suit schedule properties are

ancestral and joint family in answering point No.1 as in the

affirmative and the First Appellate Court also considering the

grounds urged in the appeal, framed the point for consideration

that whether defendant No.6 prove that item Nos.1, 2(a), 2(b),

2(d) and 2(e) were sold for family necessities and considering

the contention of defendant No.6 that he is a bonafide purchaser

taken note of material on record i.e., document of sale deeds at

Ex.D7 to D10 and also examined DW5 who is a attesting witness

to Ex.D8 and also one of the legal heir of attesting witness who

identified the signature of his father, is also supported the

version of defendant No.6. Having considered both the oral and

documentary evidence, taken note of the reasons for selling the

property that is for clearing society loan, loan availed from one

Narasimhamurthy, PLD loan and other loans for family

maintenance and same has been extracted in paragraph 45 of

the judgment and the First Appellate Court also apart from that

taken note of admission given by PW1 to PW4 that wherein they

have categorically admitted that defendant No.1 had no bad-

wises and he was the kartha of the joint family and all of them

were living together and also comes to the conclusion that the

evidence of PW1 to PW4 make it clear that the suit schedule

properties are sold for family necessities and he was not having

any bad-vices. The learned counsel contention that father was

having bad-vices and in order to substantiate the same, no

material was placed and First Appellate Court also taken note of

the admission given by PW1 to PW4 to that effect and also

considered the fact with regard to item No.2(c) of the suit

schedule property and comes to the conclusion that item No.2(c)

as per Ex.P34 not standing in the name of ancestors of plaintiffs

and defendants and selling of the said item No.2(c) property by

the father of defendant No.2 through registered sale deed hence,

no longer plaintiffs and the defendants have an existing right

with respect of item No.2(c) property and in considering material

on record comes to the conclusion that no error has committed

by the Trial Court in appreciating the evidence on record and

confirmed the judgment of the Trial Court and only modified the

judgment in O.S.No.5/2 002 in respect of item No.2(c) of the

suit schedule property and declared that the plaintiffs are

entitled for 2/6th share and separate possession in suit item

No.2(f) and 3 of the suit schedule properties. Hence, I do not

find any error committed by the First Appellate Court in re-

appreciation of both oral and documentary evidence and there

are no any substantive question of law to invoke Section 100 of

CPC to admit the second appeal and both the Courts have taken

note of the material on record and when the First Appellate

Court hold that the matter requires to be considered, framed the

additional issue and recorded the evidence of witnesses and

formulated the point and answered the same and dismissed the

appeal confirming the judgment of the Trial Court except

modification. Hence, I do not find any force in the contention of

the learned counsel for the appellants that it requires to be

framed the substantive question of law.

8. No doubt, the learned counsel for the apps has filed

an application under Order 41 Rule 27 of CPC stating that the

documents which have been placed before the Court shows

these are the documents evidenced the fact that the receipts for

having received the money and improved the land and both the

Courts have given the finding with regard to that point that suit

schedule properties are the ancestral and joint family and there

no issue with regard to the said fact hence, question of

considering additional evidence invoking Order 41 Rule 27 of

CPC does not arise when there is no dispute and when both the

Courts given the finding that suit schedule properties are the

ancestral and joint family properties and comes to the conclusion

that out of some of the properties are sold for the family

necessity considering the material on record hence, no grounds

are made out to consider the application filed under Order 41

Rule 27 of CPC to receive the additional evidence.

9. In view of the discussions made above, I pass the

following:

ORDER

The appeal is dismissed.

In view of dismissal of the main appeal, I.A.s if any, do not

survive for consideration and the same stand disposed of.

Sd/-

JUDGE

SN