Karnataka High Court
Sri K.S. Rajendra Prasad vs Sri Chinnappaiah on 27 March, 2023
Bench: H.P.Sandesh
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RSA No. 2295 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.2295 OF 2017 (PAR)
BETWEEN:
1. SRI K S RAJENDRA PRASAD
S/O LATE SONNAPPA
AGED ABOUT 60 YEARS
R/O DODDAKARI VILLAGE
BETHAMANGALA HOBLI
BANGARPET TALUK
KOLAR DISTRICT-563116
2. SRI MUNIVENKATAPPA
S/O NARAYANAGOWDA
AGED ABOUT 54 YEARS
R/O DODDAKARI VILLAGE
Digitally signed
by SHARANYA T BETHAMANGALA HOBLI
Location: HIGH BANGARPET TALUK
COURT OF
KARNATAKA KOLAR DISTRICT-563116
3. SRI T KRISHNAPPA
S/O LATE THIPPANNA,
AGED ABOUT 70 YEARS
R/O DODDAKARI VILLAGE
BETHAMANGALA HOBLI
BANGARPET TALUK
KOLAR DISTRICT-563116
...APPELLANTS
(BY SRI VINOD REDDY V, ADVOCATE)
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RSA No. 2295 of 2017
AND:
1. SRI CHINNAPPAIAH
S/O LATE KOOSAPPA
AGED ABOUT 80 YEARS
R/O DODDAKARI VILLAGE
BETHAMANGALA HOBLI
BANGARPET TALUK
KOLAR DISTRICT-563116
2. SMT. CHOWDAMMA
W/O CHINNAPPAIAH
AGED ABOUT 70 YEARS
R/O DODDAKARI VILLAGE
BETHAMANGALA HOBLI
BANGARPET TALUK
KOLAR DISTRICT-563116
3. SMT. AMOJAMMA
W/O VENKATESHAPPA
AGED ABOUT 55 YEARS
R/O DODDAKARI VILLAGE
BETHAMANGALA HOBLI
BANGARPET TALUK
KOLAR DISTRICT-563116
4. SRI NAGARAJ
S/O VENKATESHAPPA
AGED ABOUT 35 YEARS
R/O DODDAKARI VILLAGE
BETHAMANGALA HOBLI
BANGARPET TALUK
KOLAR DISTRICT-563116
5. SRI REDDAPPA
S/O VENKATESHAPPA
AGED ABOUT 30 YEARS
R/O DODDAKARI VILLAGE
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RSA No. 2295 of 2017
BETHAMANGALA HOBLI
BANGARPET TALUK
KOLAR DISTRICT-563116
6. SRI REDDAMMA
D/O VENKATESHAPPA
AGED ABOUT 29 YEARS
R/O DODDAKARI VILLAGE
BETHAMANGALA HOBLI
BANGARPET TALUK
KOLAR DISTRICT-563116
7. SRI K M ANJANAPPA
S/O LATE MUNE GOWDA
AGED ABOUT 65 YEARS
R/O DODDAKARI VILLAGE
BETHAMANGALA HOBLI
BANGARPET TALUK
KOLAR DISTRICT-563116
8. SRI K N KRISHNAPPA
S/O NASAPPA
AGED ABOUT 59 YEARS
R/O DODDAKARI VILLAGE
BETHAMANGALA HOBLI
BANGARPET TALUK
KOLAR DISTRICT-563116
9. SRI K VIJAYAKUMAR
S/O LATE K M KRISHNAPPA
AGED ABOUT 40 YEARS
R/O DODDAKARI VILLAGE
BETHAMANGALA HOBLI
BANGARPET TALUK
KOLAR DISTRICT-563116
10. SRI VISWANATH
S/O LATE RAME GOWDA
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RSA No. 2295 of 2017
AGED ABOUT 40 YEARS
R/O DODDAKARI VILLAGE
BETHAMANGALA HOBLI
BANGARPET TALUK
KOLAR DISTRICT-563116
11. SMT. CHOWDAMMA
D/O LATE SONNAPPA
AGED ABOUT 80 YEARS
R/O DODDAKARI VILLAGE
BETHAMANGALA HOBLI
BANGARPET TALUK
KOLAR DISTRICT-563116
12. SMT. GANGAMMA
W/O LATE VENATESHAPPA
D/O LATE SOMAPPA
AGED ABOUT 77 YEARS
R/AT H GOLLAHALLI VILLAGE
MULBAGAL TALUK
KOLAR DISTRICT-563131
13. SMT. SAROJAMMA
D/O LATE SONNAPPA
W/O LATE ANJANEYA REDDY
AGED ABOUT 70 YEARS
R/AT ANTHARAGANGA ROAD
KOLAR-563116
14. SMT. GOWRAMMA
D/O LATE SONNAPPA
W/O MUNIRATHNAPPA
AGED ABOUT 60 YEARS
R/AT NEAR KAMAKSHMMA TEMPLE
MUTHALAPETA MULBAGAL TOWN
MULBAGAL TALUK
KOLAR DISTRICT-563131
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RSA No. 2295 of 2017
15. SRI KARUNAKUMAR
AGED ABOUT 50 YEARS
S/O LATE MUNISWAMY GOWDA
R/O DODDAKARI VILLAGE
BETHAMANGALA HOBLI
BANGARPET TALUK
KOLAR DISTRICT-563116
16. SRI KRISHNAPPA
S/O LATE SRI MUGE GOWDA
AGED ABOUT 63 YEARS
R/O DODDAKARI VILLAGE
BETHAMANGALA HOBLI
BANGARPET TALUK
KOLAR DISTRICT-563116
...RESPONDENTS
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 03.07.2017
PASSED IN R.A.NO.125/2015 ON THE FILE OF THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, KOLAR,
SITTING AT KGF AND ETC.
THIS R.S.A. COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 2295 of 2017
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 03.07.2017 passed in R.A.No.125/2015
on the file of the III Additional District and Sessions Judge,
Kolar, sitting at KGF.
3. The factual matrix of the case of the plaintiff
before the Trial Court is that one Sarjapurada Muniswamy
was the propositus of the family. He died leaving behind
his six sons. The sons of Sarjapurada Muniswamy also
died leaving behind their sons who are plaintiff Nos.1 to 5
and defendant No.1. The plaintiffs and defendant No.1 are
the members of the joint family. The said joint family
possessed the suit schedule properties. Plaintiff Nos.1 to 5
are employed in different places hence, they could not
manage the properties by themselves and therefore
defendant No.1 was looking after the properties on their
behalf. Subsequently, the plaintiffs came to know that
RSA No. 2295 of 2017
defendant No.1 has not managed the properties well and
shifted to Bangalore to do his business. When the plaintiffs
questioned defendant No.1 how he can manage the
properties without being in the village, defendant No.1 did
not give proper reply. The plaintiffs came to know that
defendant No.2 has made some documents in her favour.
As such, she has been proclaiming that she is the owner of
the suit schedule properties and she can sell away the
same. The alleged documents came into existence without
the knowledge of the plaintiffs in the month of November
2006. Hence, the plaintiffs demanded for partition and
separate possession of their share in the suit schedule
properties. In this regard, panchayat was also convened
in the month of December 2006. However, defendant
No.1 evaded to attend the panchayath. It is further
contended that defendant No.2 along with her daughter
and grandchildren who are defendant Nos.3 to 6 have sold
the suit item Nos.1 to 3 in 'A' schedule property and item
No.2 in 'B' schedule property and 'C' schedule property
under sale deed dated 21.01.2008 to defendant Nos.7 to
RSA No. 2295 of 2017
10 during the pendency of the suit. Hence, the alleged
sale is hit by Section 52 of T.P. Act. Defendant Nos.7 to
10 are not the bonafide purchasers for value without
notice. The plaintiffs and defendant No.1 are in joint
possession and enjoyment of the suit schedule properties.
Hence, filed the suit.
4. In pursuance of suit summons, defendant No.2
and defendant Nos.7 to 10 have appeared before the
Court and filed their separate written statement. The case
of defendant No.2 is that suit is not maintainable for non-
joinder of necessary parties as the plaintiffs have
deliberately not arrayed their brothers and sisters as
parties to the suit. The plaintiffs and their respective
fathers have sold some of the properties allotted to their
share in the partition and the purchasers of the said
properties are also not made as parties to the suit. The
plaintiffs have filed the suit by suppressing the material
facts. The plaintiffs have not included the properties
standing in their names as well as their respective fathers.
RSA No. 2295 of 2017
The plaintiffs are not in possession of the suit schedule
properties and the Court fee paid is insufficient.
5. It is further contended that the suit schedule
properties were allotted to the share of defendant No.2 by
defendant No.1 in lieu of her maintenance vide registered
settlement deed dated 29.12.1989. Hence, the suit
schedule properties are the absolute properties of
defendant No.2. The plaintiffs have no manner of right,
title or interest over the suit schedule properties.
Defendant No.2 has been in possession and enjoyment of
the suit schedule properties and all the revenue records
are standing in her name from the date of execution of
settlement deed. It is contended that there was a
partition effected between the predecessors-in-interest of
the plaintiffs and defendant No.1 long ago. The plaintiffs
and their sons partitioned the properties allotted to the
share of their respective predecessors-in-interest. The
revenue records have been mutated in the names of
plaintiffs and their brothers. The suit is filed only to
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RSA No. 2295 of 2017
harass defendant No.2. At the instigation of the plaintiffs,
defendant No.1 had filed a suit against defendant No.2 in
O.S.No.158/2006 for the relief of declaration of title as
well as injunction which is pending before the Court.
When defendant No.1 failed to secure any relief in
O.S.No.158/2006, the plaintiffs have filed the present suit.
Defendant No.2 denied the entire averments made in the
plaint.
6. Defendant Nos.7 to 9 took the contention that
they have purchased the property vide sale deed
21.01.2008. Defendant No.2 is the legally wedded wife of
defendant No.1 and defendant No.3 is the daughter of
defendant Nos.1 and 2. defendant Nos.4 to 6 are the
grandchildren of defendant Nos.1 and 2. During the
lifetime of predecessors-in-interest of plaintiffs and
defendant No.1, the family properties were partitioned
long back and they have enjoyed the properties.
Defendant No.1 retained certain properties for his
maintenance and those properties are in the custody of
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RSA No. 2295 of 2017
plaintiffs and those properties are not included in the
plaint. Defendant No.7 has purchased half portion of item
No.1 of 'A' schedule property in Sy.No.19/1 to the extent
of 30 guntas out of 1 acre 21 guntas from defendant Nos.2
to 6 for valuable consideration on 21.01.2008. From the
date of purchase, he is in possession and enjoyment of the
said property and relevant documents are standing in his
name.
7. Based on the pleadings of the parties, Trial
Court framed the issues and allowed the parties to lead
their evidences. The plaintiffs in order to prove their case,
examined one witness as PW1 and got marked the
documents at Ex.P1 to 17 and plaintiffs got exhibited
Ex.P18 and P19 and those documents are confronted to
DW2. On the other hand, defendants have examined three
witnesses as DW1 to DW3 and got marked the documents
at Ex.D1 to D11. The Trial Court after considering both
oral and documentary evidence placed on record dismissed
the suit of the plaintiffs. Hence, an appeal was preferred
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RSA No. 2295 of 2017
before the First Appellate Court. The First Appellate Court
also in view of the grounds urged in the appeal memo
extracted the admission given by PW1 in the cross-
examination and dismissed the appeal. Hence, the
present second appeal is filed before this Court.
8. The main contention of the learned counsel for
the appellants in this appeal is that both the Courts have
committed an error in accepting the contention that
already there was a partition among the family members
and also sold some of the properties which they have
derived in the partition and finding of both the Courts that
there was a partition and execution of release deed and
right of defendant No.1 to execute the release deed and
holding defendant Nos.7 to 10 are the bonafide purchasers
are perverse and contrary. Hence, this Court has to frame
substantial question of law. It is contended that both the
Courts have justified in holding that defendant Nos.7 to 10
are the bonafide purchasers when they themselves have
accepted in their evidence that they knew that the suit
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RSA No. 2295 of 2017
was pending when they purchased the properties. The
First Appellate Court also not justified in accepting the
finding of the Trial Court. hence, This Court has to frame
the substantial question of law.
9. Having heard the learned counsel for the
appellants and also on perusal of the material available on
record, it discloses that the plaintiffs contended that suit
schedule properties are the ancestral properties and the
same is subject matter of the suit and there was no
partition among the family members hence, they are
entitled for the share. Defendant No.2 took the specific
defence that already there was a partition and respective
parties are having their possession and some of the
properties were sold which were also allotted to them and
also defendant No.1 had executed the release deed and
defendant No.2 had purchased half portion of item No.2
property and he is a bonafide purchaser and defendant
No.8 also purchased half portion of item Nos.1 and 2
property and they are the bonafide purchasers. The Trial
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RSA No. 2295 of 2017
Court while considering both oral and documentary
evidence placed on record in paragraph 26 discussed the
case of the plaintiffs that the suit schedule properties are
the joint family properties. But it is the contention of the
plaintiffs that defendant No.1 has illegally created the
release deed in favour of defendant No.2. Defendant
Nos.2 to 6 have sold item Nos.1 to 3 of 'A' schedule
property and item No.2 of 'B' schedule property and 'C'
schedule property to defendant Nos.7 and 8.
10. The Trial Court having considered both oral and
documentary evidence placed on record in paragraph 27
taken note that plaintiffs have not arrayed all the lineal
descendants of Sarjapurada Muniswamy as parties to the
suit. Since PW1 categorically admitted in the cross-
examination that Munegowda is not arrayed as party to
the suit. Though they contend that the property was
standing in the name of predecessors, no document is
placed before the Court. But he categorically admitted
that, the properties were divided among his father
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RSA No. 2295 of 2017
Sonnappa, Koosappa, father of defendant No.1 and the
fathers of other plaintiffs as such the name of respective
share holders are shown in the boundaries of suit schedule
properties. It is also observed that the plaintiffs have not
furnished RTC or M.R. standing in the name of their
grandfather. They have exhibited RTCs showing names of
defendant Nos.7 to 9. Hence, Trial Court comes to the
conclusion that the plaintiffs have suppressed the earlier
partition took place among their predecessors-in-interest
and the father of defendant No.1. Defendant No.2 has
exhibited the document of settlement deed dated
29.12.1980 and also taken note of mutation in
M.R.No.14/1981-82. Having considered both oral and
documentary evidence placed on record, the Trial Court
dismissed the suit.
11. The First Appellate Court also on re-
appreciation of both oral and documentary evidence
placed on record particularly, the admission of PW1
wherein he categorically admitted that since there was
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RSA No. 2295 of 2017
partition effected between his father and father of
defendant No.1, property of different persons are shown in
the boundaries to the suit properties. Apart from that
PW1 has admitted that some properties situated by the
side of suit properties have been in the name of fathers of
plaintiffs and those properties have not been included in
the suit schedule. If there was no partition effected
between the joint family members, plaintiffs ought to have
included all the properties in the suit schedule but the
plaintiffs left out the properties in which they are in
occupation. Thus, the Court comes to the conclusion that
already there was partition and they have retained some
of the properties and some of the properties were sold and
also taken note of the admission of PW1 that suit schedule
properties are given to defendant No.2 by defendant No.1
in the year 1980 towards her maintenance since then,
defendant No.2 is enjoying the suit schedule properties.
The counsel for the appellants would submit that no such
admission was given by PW1 but on perusal of deposition,
the said admission is found in page No.4 of the deposition
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RSA No. 2295 of 2017
of PW1 and the same is extracted in the order of the First
Appellate Court. Hence, the said submission of the counsel
cannot be accepted.
12. The First Appellate Court also on re-
appreciation of both oral and documentary evidence
placed on record comes to the conclusion that already
there was a partition and in paragraphs 17 and 18
discussed in detail regarding earlier partition and parties
are in possession of the respective properties. When both
the Court have applied their mind and given anxious
consideration to the admission of PW1 and comes to the
conclusion that there was already partition and the
properties which were in the occupation of the plaintiffs
were not made as part of the suit hence, rightly comes to
the conclusion that the defendants have proved the case
that already there was a partition and subsequently
settlement deed was came into existence between
defendant Nos.1 and 2 and those properties were also sold
in favour of other defendants who are the purchasers.
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RSA No. 2295 of 2017
Hence, I do not find any error committed by both the
Courts in dismissing the suit of the plaintiffs. Thus, there
are no grounds to admit the appeal and to frame
substantial question of law invoking Section 100 of CPC.
13. 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. if any, does not survive for consideration
and the same stands disposed of.
Sd/-
JUDGE
SN
