Prema vs Doddamadamma
2023 Latest Caselaw 7231 Kant

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                                                          NC: 2023:KHC:37668
                                                         RSA No. 928 of 2020




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 12TH DAY OF OCTOBER, 2023

                                             BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                        REGULAR SECOND APPEAL NO. 928 OF 2020 (PAR)

                   BETWEEN:

                   1.    PREMA
                         W/O KALALPPA
                         AGED ABOUT 62 YEARS
                         RESIDENT OF THAGADUR
                         VILALGE BILIGERE HOBLI,
                         NANJANGUD TALUK-571301.
                                                                   ...APPELLANT
                                (BY SRI NAGARAJA R.C., ADVOCATE)
                   AND:

                   1.    DODDAMADAMMA
                         W/O GORAVEGOWDA
                         D/O SIDDEGOWDA
Digitally signed         AGED ABOUT 58 YEARS
by SHARANYA T            R/AT NO.2674,
Location: HIGH           3RD CROSS, K.G. KOPPAL
COURT OF
KARNATAKA                MYSORE CITY-570001.

                   2.    BASAVEGOWDA
                         S/O LATE SIDDEGOWDA
                         AGED ABOUT 67 YEARS
                         R/A NO.530,
                         3RD CROSS,
                         YARAGANAHALLI EXTENSION
                         BEHIND GOPIKA SCHOOL
                         MYSORE CITY-570001.
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                                        NC: 2023:KHC:37668
                                       RSA No. 928 of 2020




3.   SAKAMMA
     W/O BASAVEGOWDA,
     AGED ABOUT 47 YEARS
     R/AT NO.530, 3RD CROSS,
     YARAGANAHALLI EXTENSION
     BEHIND GOPIKA SCHOOL
     MYSORE CITY-570001.

4.   SAVITHA
     D/O BASAVEGOWDA
     AGED ABOUT 26 YEARS
     R/A NO.530,
     3RD CROSS,
     YARAGANAHALLI EXTENSION
     BEHIND GOPIKA SCHOOL
     MYSORE CITY-570001.
                                           ...RESPONDENTS

     THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 11.12.2019
PASSED IN RA.No.27/2018 ON THE FILE OF THE SENIOR CIVIL
JUDGE, NANJANGUD, DISMISSING        THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 20.08.2018
PASSED IN OS No.403/2009 ON THE FILE OF THE C/c
PRINCIPAL CIVIL JUDGE AND JMFC, NANJANGUD.

     THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                         JUDGMENT

This matter is listed for admission and heard the

counsel for appellant.

2. The case of the plaintiff before the Trial Court

that the suit schedule property belongs to her father and

even revenue records are also standing in the name of her

NC: 2023:KHC:37668 RSA No. 928 of 2020

father and the defendant No.1 and her father passed away

leaving behind her and her brother i.e., defendant No.1

and also in support of her claim, she has relied upon the

document at Ex.P15 to Ex.P17 are certified copies of hand

written RTC extracts in respect of the suit schedule

property in the year 1971-1984. On perusal of the RTC

extract pertaining to the year 1971-1984 reflects the

name of the father of the plaintiff and the defendant No.1.

The nature of the acquisition of the suit schedule property

is ancestral as claimed by the plaintiff. The plaintiff got

exhibited Ex.P12 i.e., the certified copy of registered sale

deed dated 19.07.1982. On perusal of the same, the

defendant Nos.1 and 2 have alienated the suit schedule

property in favour of one Madegowda. Later the defendant

Nos.1 and 2 have repurchased the suit property from

Madegowda through the registered sale deed dated

28.02.1986, in order to substantiate the same, the

certified copy of registered sale deed dated 28.02.1986 is

produced and the same is marked as Ex.P11. Hence,

claims that the suit schedule property remains partakes

NC: 2023:KHC:37668 RSA No. 928 of 2020

character of ancestral property, since the suit schedule

property is an ancestral and joint family property

consisting of plaintiff and the defendant No.1, the

defendant Nos.1 and 2 are not having any exclusive right

to execute the sale deed. On the other hand, the appellant

herein took the specific defense that he is a bonafide

purchaser and the Trial Court having considered the

material available on record, granted 1/4th share in respect

of the suit schedule property and declared that the

registered sale deed dated 27.10.1999 is not binding,

since the plaintiff is not a party to the said sale deed.

3. Being aggrieved by the said judgment and

decree of the Trial Court, an appeal is filed before the

appellate Court in RA No.27/2018. The First Appellate

Court having reconsidered the material on record and also

considering the ground urged in the appeal memo,

formulated the point as whether the pleadings and the

evidence on record are insufficient to decree the suit in

granting the relief as prayed for and whether the

NC: 2023:KHC:37668 RSA No. 928 of 2020

judgment requires any interference. The First Appellate

Court having considered the material available on record

taken note of the document that the father of the plaintiff

died about 45-50 years ago and the same is the evidence

of PW1 and the document at Ex.P15 -khata of the schedule

property stood in the name of Siddegowda who is the

father of the plaintiff and also taken note of Ex.D2- sale

deed dated 27.10.1999 and in Ex.D2 itself it is mentioned

that exclusive possession was delivered by defendant

Nos.1 to 3 in favour of defendant No.4.

4. The First Appellate Court taking into note of the

principles laid down in the judgment reported in ILR 1985

KAR 1115 and also the judgment reported in 2008 (4)

CLJ 433 and by considering the principles laid down in the

said judgment, comes to the conclusion that in so far as

bonafides of the 4th defendant it is relevant to note the

evidence on record. The DW1 has admitted that he knows

almost all people at Thagaduru Village, hence he must be

considered that he is aware of the family of the defendants

NC: 2023:KHC:37668 RSA No. 928 of 2020

and also the DW1 has deposed that he has not made any

effort to get the family genealogical tree of Basavegowda

and he has not issued any public notice before purchasing

the property and having taken note of this admission

comes to the conclusion that the defendant No.4 cannot

contend that he is a bonafide purchaser. Having reassess

the material available on record, the appellate Court

confirmed the judgment of the Trial Court.

5. Being aggrieved the said judgment and decree

of the Trial Court as well as the First Appellate Court,

present second appeal is filed before this Court. The

counsel for appellant would vehemently contend that the

Courts below have fails to appreciate the legal implications

of sale of suit schedule property by respondent Nos.1 and

2 by registered deed of sale dated 19.07.1982 to one

Madegowda and repurchase of the same in the year 1986.

Further sale of the suit schedule property in favour of the

appellant by registered deed of sale dated 27.10.1999 and

hence this Court has to frame substantial question law

NC: 2023:KHC:37668 RSA No. 928 of 2020

that both the Courts below have not justified in holding

that the suit schedule property is an ancestral property of

the respondents and not chosen to challenge the sale

transaction dated 19.07.1982 and hence, this Court has to

admit and frame substantial question of law.

6. Having heard the counsel for the appellant and

also on perusal of the material on record and also

particularly the reasons assigned in the Trial Court

judgment in paragraph No.12 taken note of the document

at Ex.P15 to Ex.P17 which are standing in the name of the

father from 1971-1984 and that property was registered in

the year 1982 and the same is by respondent Nos.1 and 2

and when the father was not alive and not executed any

testamentary document the plaintiff acquires the share in

respect of the said property, but she was excluded by

selling the property and though it was repurchased and

once again sold the property in terms of Ex.P11 in favour

of the defendant No.4 and having considered the nature of

the property originally belongs to Siddegowda and he died

NC: 2023:KHC:37668 RSA No. 928 of 2020

intestate and taken note of the said fact into consideration

by the Trial Court as well as the First Appellate Court and

the very contention of the counsel appearing for the

appellant that both the Courts have not appreciated the

material on record in proper perspective and ought to

have taken note of the fact that the property was standing

in the name of these vendors and the Trial Court and the

First Appellate Court have taken note of the admission

given by the DW1 in the cross-examination regarding prior

to purchase whether he made an enquiry or not and

rightly comes to the conclusion that he is not a bonafide

purchaser unless he has verified the title and the

documents are also discloses that the property belongs to

Siddegowda and the katha also standing in the name of

the said Siddegowda and hence, I do not find any error

committed by the Trial Court as well as the First Appellate

Court on appreciation and re-appreciation of the evidence

available on record. The very contention that it is a self

acquired property of his vendor cannot be accepted and

the appellant has not verified the property originally

NC: 2023:KHC:37668 RSA No. 928 of 2020

belongs to whom, under these circumstances he cannot

claim that he is a bonafide purchaser and hence, I do not

find any merit in the second appeal to invoke Section 100

of CPC and admit and frame substantial question of law.

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

the following:

ORDER

The second appeal is dismissed.

Sd/-

JUDGE

RHS