Praveen vs Mahendar Kumar And Ors
2023 Latest Caselaw 1835 Kant

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                                                       RFA No. 200039 of 2018




                    IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH

                             DATED THIS THE 14TH DAY OF MARCH, 2023

                                             BEFORE
                                THE HON'BLE MR JUSTICE C.M.JOSHI
                        REGULAR FIRST APPEAL NO. 200039 OF 2018 (PAR/POS)

                   BETWEEN:

                   PRAVEEN S/O MADHAVRAO BIRADAR,
                   AGE: 34 YEARS, OCC: AGRICULTURE,
                   R/O MANJARI VILLAGE, TQ: UDGIR,
                   DIST: LATUR (M.S.)
                   NOW RESIDING AT ANAND NAGAR,
                   BEHIND PRATAP NAGAR, BIDAR.
                                                                 ...APPELLANT
                   (BY SRI. RAVI B.PATIL, ADVOCATE)
                   AND:

                   1.    MAHENDAR KUMAR
                         S/O SHAMSUNDAR CHIDRE,
                         AGE: 41 YEARS,
                         OCC: AGRICULTURE & LABOUR,
                         R/O TARNALLI, TQ: BHALKI,
                         DIST: BIDAR-585105
Digitally signed
by SOMANATH
                   2.    NIRANJAN
PENTAPPA                 S/O SHAMSUNDAR CHIDRE,
MITTE
Location: High           AGE: 29 YEARS, OCC: AGRICULTURE & LABOUR,
Court of                 R/O TARNALLI, TQ: BHALKI,
Karnataka
                         DIST: BIDAR-585401.
                   3.    SHAMSUNDAR S/O LATE LALAPPA,
                         AGE: 61 YEARS, OCC: AGRICULTURE &
                         RAILWAY EMPLOYEE,
                         R/O TARNALLI, TQ: BHALKI,
                         DIST: BIDAR-585401.
                   4.    REKHA W/O SHIVKUMAR
                         (D/O SHAMSUNDAR S/O LATE LALAPPA)
                         AGE: 35 YEARS, OCC: HOUSEHOLD,
                         R/O CHURCH ASTOOR VILLAGE,
                         TQ: & DIST: BIDAR-585401.
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                                             RFA No. 200039 of 2018




5.   MANGAL S/O BALIRAM PATIL,
     AGE: MAJOR, OCC: PETTY BUSINESS,
     R/O DINADAYAL NAGARA,
     BIDAR-585401.
                                                    ...RESPONDENTS
(BY SRI. A.M.NAGRAL, ADVOCATE FOR R1 & R2;
SRI. AMRESH S.ROJA, ADVOCATE FOR R3;
SRI. GANESH S.KALABURGI & DESHPANDE G.V.,
ADVOCATES FOR R4 & R5)
      THIS RFA IS FILED UNDER SECTION 96 OF CODE OF CIVIL
PROCEDURE, 1098, PRAYING TO SET ASIDE THE JUDGMENT AND
DECREE PASSED BY THE COURT OF ADDITIONAL SENIOR CIVIL
JUDGE & CJM AT BIDAR IN O.S.NO.89/2014, DATED 07.12.2017
INSOFAR AS GRANTING THE RELIEF OF PARTITION IN FAVOUR OF
THE PLAINTIFFS NO.1 AND 2 IN RESPECT OF THE NORTHERN ½
PORTION     OF     THE    SUIT    SCHEDULE         PROPERTY     AND
CONSEQUENTIALLY          ALLOW    THE        PRESENT   APPEAL    BY
REJECTING THE CLAIM OF THE PLAINTIFFS NO.1 AND 2 IN
ENTIRETY, IN THE INTEREST OF JUSTICE AND ETC.

      THIS APPEAL HAVING BEEN HEARD THROUGH PHYSICAL
HEARING/VIDEO CONFERENCE AND RESERVED FOR JUDGMENT
ON   01.03.2023,   COMING    ON        FOR    PRONOUNCEMENT      OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:


                           JUDGMENT

This appeal is directed against the judgment in

O.S.No.89/2014 by the learned Addl. Senior Civil Judge &

CJM Bidar on 07.12.2017, thereby a suit for partition came

RFA No. 200039 of 2018

to be decreed with a direction for equitable partition in the

suit schedule property.

2. The brief facts are as under:

The plaintiff Nos.1 and 2 are the sons of defendant

No.1 and the defendant No.2 is the daughter of the

defendant No.1. The defendant No.3 happens to be a

purchaser of 1 acre of land in the suit schedule property.

The suit schedule property measuring 2 acres 6 guntas in

Sy.No.44 was the ancestral joint family property of the

plaintiffs and defendant Nos.1 and 2. The grand father of

the plaintiffs and defendant No.2 by name Lalappa was the

propositus and owner of the suit schedule property and he

died in the year 1970 leaving behind him the defendant

No.1 and his wife Neelamma. After the death of Lalappa,

his wife i.e. Neelamma also died. The defendant No.1 was

an illiterate and a Group 'D' Employee in Railway

Department. The defendant No.2 was married to one

Shivakumar in the year 2000. Defendant No.1 started

living with the defendant No.2 and taking undue

RFA No. 200039 of 2018

advantage of his stay with the defendant No.2, the

defendant No.2 got mutated her name to the suit land to

the extent of 2 acres. Only 6 guntas remained with the

defendant No.1 and it was behind the back of the plaintiffs

during 2004. By virtue of the illegal entry, the defendant

No.2 executed a registered sale deed on 30.09.2010 in

favour of defendant No.3 for 1 acre of land. It is alleged

that the said sale deed is sham bogus and without

consideration and therefore the said sale deed executed by

defendant No.2 in favour of defendant No.3 is not binding

on the plaintiffs. Therefore, the defendant No.2 alienated

another 1 acre of land in favour of defendant No.4 on

06.03.2012 through a registered sale deed. The said sale

deed is also alleged to be without any consideration and

defendant Nos.3 and 4 shall not derive any advantage

from both the sale deeds. The plaintiff Nos.1 and 2

approached the defendant Nos.1 and 2 and requested for

partition, but the defendant Nos. 1 & 2 refused saying that

they have alienated the property. Therefore the plaintiffs

filed the suit for partition and separate possession and

RFA No. 200039 of 2018

cancellation of two sale deeds are not binding on their

shares.

3. On issuance of suit summons, the defendants

Nos.1 to 3 appeared through counsel and defendant No.4

did not appear despite of service of summons and

therefore he was placed ex-parte. The defendant Nos.1

and 2 did not file any written statement, but the defendant

No.3 filed his written statement denying the averments

made in the plaint. He contended that the plaintiff Nos.1

and 2 are not the sons of defendant No.1 and that the

defendant No.2 was the only daughter of the defendant

No.1. He contended that after due diligence and verifying

all the records, he purchased 1 acre of land from the

defendant No.2 through registered sale deed dated

30.09.2010 by paying consideration of Rs.6,15,000/- and

he is in possession of the said 1 acre of land and as such

he is a bonafide purchaser of the property. Interalia he

also contended that the defendant No.2 also entered into

an agreement of sale with the defendant No.3 and later

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executed a sale deed in favour of defendant No.4 to put

the interest of defendant No.2 jeopardy. Therefore, the

defendant No.3 filed O.S.No.174/2013 before the Prl.

Senior Civil Judge, Bidar for specific performance of

contract of agreement of sale. It is also contended that in

the meanwhile one Ambavva had also filed a suit in

O.S.No.154/2014 before Prl. Senior Civil Judge Court,

Bidar seeking declaration of her title over the suit land.

Therefore, the defendant No.3 sought for dismissal of the

suit.

4. Based on the above contentions, the Trial Court framed the following ISSUES

1. Whether the plaintiffs prove that they are undivided Hindu family members and suit schedule properties are joint family properties of them?

2. Whether the plaintiffs further prove that the Sale deeds dated 30.09.2010 and 06.03.2012 are nul and void and not binding by share?

3. Whether the defendant No.3 proves that he is bonafied purchaser of suit property that is 1 acre of land?

RFA No. 200039 of 2018

4. Whether the plaintiffs entitle for the reliefs he sought?

5. What order or award?

5. The plaintiff No.1 was examined as PW1 and a

witness was examined as PW2 and Ex.P1 to Ex.P25 were

marked. The defendant No.1 to 3 have not lead any

evidence in the matter. The PW1 and PW2 were not cross

examined by the defendant No.3.

6. After hearing the arguments, the Trial Court

answered issue Nos.1 to 3 in the affirmative and issue

No.4 in the partly affirmative and proceeded to decree the

suit granting half share together to the plaintiffs and

remaining half share to defendant No.2 directed an

equitable partition in the property.

7. Aggrieved by the same, the defendant No.3 is

before this Court in appeal. The defendant No.3 contends

that the Trial Court has proceeded with the matter in a

mechanical manner without providing any opportunity to

RFA No. 200039 of 2018

the appellant to either cross examine PW1 and PW2 or

adduce his evidence in the matter. It is contended that

though the defendant No.3 filed an application seeking

permission to adduce evidence, the said application came

to be rejected and the impugned judgment and decree has

been passed. It is contended that the relationship

between the plaintiffs and defendant Nos.1 and 2 was

disputed by the defendant No.3 and there is no iota of

evidence which has been placed on record by the plaintiffs

in this regard. It is contended that the property standing

in the name of Lalappa was mutated in the name of

defendant No.1 and later it was mutated in the name of

defendant No.2.

8. It is further contended that the defendant No.3

had taken a specific defence that he has purchased 1 acre

of land on the Southern half portion of Sy.No.44 under a

registered sale deed from defendant No.2 and he also had

entered into registered agreement of sale for the

remaining 1 acre with the defendant No.2 and therefore he

RFA No. 200039 of 2018

is in possession and enjoyment of the entire extent of 2

acres of land. It was contended that he had filed

O.S.No.174/2013 for the relief of specific performance

against the defendant No.2 to enforce the agreement of

sale entered into. Therefore, when the pendency of

O.S.No.174/2013 was brought to the notice of the Court,

the impugned judgment passed by the Trial Court is

erroneous and as such it requires to be set aside.

9. I have heard the arguments by the learned

counsel appearing for the appellant and the learned

counsel appearing for the respondents.

10. The learned counsel for the appellant/defendant

No.3 has reiterated his contention that he was not

provided with sufficient opportunity to put forth before the

Trial Court and that the Trial Court has erred in

considering the contentions raised by him. The perusal of

the order sheet of the Trial Court discloses that the Trial

Court has made certain efforts to bring the parties to the

negotiating table by referring the matter to the mediation.

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RFA No. 200039 of 2018

But mediation has failed. The PW1 and PW2 were

examined before the trial Court on 01.08.2017.

Thereafter, on 09.08.2017, 16.08.2017, 30.08.2017,

11.09.2017, there was no progress or representation by

the defendants. Ultimately the arguments of the plaintiffs

were heard and the matter was posted for judgment on

06.10.2017. When the matter stood posted for the

judgment, defendant No.3 filed an application to reopen

the matter, it was heard and by a detailed order dated

20.11.2017, the prayer came to be rejected. The

judgment was pronounced on 07.12.2017. The above turn

of event before the Trial Court disclose that ample

opportunities were granted to the defendant No.3 to

adduce his evidence or cross examine the witnesses of the

plaintiffs. I am unable to accept the contention of the

learned counsel for the appellant that adequate

opportunities were not provided to the appellant to put

forth his case.

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RFA No. 200039 of 2018

11. It is relevant to note that there is no cross

examination of the plaintiffs' witnesses by the defendant

No.3. The defendant No.3 contends that the relationship

between the plaintiffs and defendant No.1 is not

established. Obviously the question of relationship

between the plaintiff and defendant Nos.1 and 2 was not

disputed by the defendant Nos.1 and 2. The Ex.P21 is the

extract of the mutation entry whereby the name of the

defendant No.2 was entered in respect of Sy.No.44 and it

was on account of a partition. It is also relevant to note

that the remaining 1 acre of land held by the defendant

No.2 was sold in favour of the defendant No.4 under a

registered sale deed.

12. To substantiate the contention of the

appellant/defendant No.3 that he had entered into an

agreement of sale with the defendant No.2 in respect of

the remaining 1 acre of land, which is allegedly sold to

defendant No.4, no material is placed on record by the

appellant. It is relevant to note that when the defendant

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RFA No. 200039 of 2018

No.3 had filed his written statement, it was incumbent

upon him to produce all the relevant documents which he

wants to rely as provided under Order 8 of CPC. No such

documents were placed before the Trial Court in support of

such a defence taken up by the defendant No.3. On the

other hand, it was the plaintiffs who have produced the

certified copies of the sale deed executed in favour of

defendant No.3 as well as defendant No.4. Therefore, the

contention of the defendant No.3 that the plaintiffs were

not at all related to the defendant Nos.1 and 2 was not put

to test either by the PW1 or the PW2. Moreover, when the

issues were framed by the Trial Court on 13.02.2017, he

did not seek for framing of an issue relating to the

relationship between the plaintiffs and defendant Nos.1

and 2. Under these circumstances, I am unable to accept

the contention of learned counsel appearing for the

appellant that he had disputed the relationship between

plaintiff and defendant Nos.1 and 2 or established such a

contention with any material before the Trial Court.

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RFA No. 200039 of 2018

13. Obviously the Trial Court has considered the

pleadings of the defendant No.3and there being no

material to show that the plaintiffs and defendant Nos.1

and 2 are not at all related to each other, it proceeded to

pass the impugned judgment. However, while decreeing

the suit, the existing right of defendant No.3 is protected

and the entire share of the defendant Nos.1 and 2 is

ordered to be allotted to the defendant No.3 by way of

equitable partition.

14. If at all the appellant /defendant No.3 herein

has filed a suit for specific performance of contract against

the defendant No.2 in O.S.No.174/2013 , he is at liberty to

seek suitable remedy against defendant No.2 as well as

defendant No.4. Under these circumstances, I do not find

any merit in the appeal filed by the defendant No.3.

Therefore, the appeal filed by the appellant is bereft of any

merits. The appellant is at liberty to agitate his rights

regarding equitable partition before the Court in the final

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RFA No. 200039 of 2018

decree proceedings. Hence, for the above said reasons, I

proceed to pass the following:

ORDER

The appeal is dismissed.

No order as to costs.

Sd/-

JUDGE

SMP