Vithal S/O Hajappa Lamani vs Yankamma W/O Chidambar Kulkarni
2024 Latest Caselaw 10311 Kant

Karnataka High Court

Vithal S/O Hajappa Lamani vs Yankamma W/O Chidambar Kulkarni on 15 April, 2024

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                                                   NC: 2024:KHC-D:6351-DB
                                                         RFA No. 100550 of 2019




                         IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                               DATED THIS THE 15TH DAY OF APRIL, 2024

                                              PRESENT
                                THE HON'BLE MR JUSTICE E.S.INDIRESH
                                                 AND
                          THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR

                        REGULAR FIRST APPEAL NO. 100550 OF 2019 (PA/DE/IN)

                   BETWEEN:

                   VITHAL S/O. HAJAPPA LAMANI
                   AGE: 55 YEARS, OCC: AGRICULTURE,
                   R/O: GANI, TQ: BASAVANA BAGEWADI,
                   DIST: VIJAYAPURA-586203.
                                                                       ...APPELLANT

                   (BY SRI PRAKASH N. HOSAMANE, ADVOCATE)

                   AND:

                   1.     YANKAMMA W/O. CHIDAMBAR KULKARNI
                          (D/O MADHWACHARI JOSHI),
                          AGE: 46 YEARS, OCC: TEACHER,
                          R/O: RARAVI, TQ: SHIRAGUPPA,
                          DIST: BALLARI-583121.
Digitally signed
by SAMREEN
AYUB               2.     GOPALKRISHNA S/O CHIDAMBAR KULKARNI
DESHNUR
Location: HIGH            AGE: 16 YEARS, OCC: STUDENT,
COURT OF
KARNATAKA                 R/O: RARAVI, TQ: SHIRAGUPPA,
                          DIST: BALLARI-583121.
                          (RESPONDENT NO. 2 IS MINOR, REPRESENTED BY
                          RESPONDOENT NO.1 AS MGM)

                   3.     CHIDAMBAR S/O GOPALARAO KULKARNI
                          AGE: 50 YEARS, OCC: AGRICULTURE,
                          R/O: RARAVI, TQ: SHIRAGUPPA,
                          DIST: BALLARI-583121.
                                                                 ...RESPONDENTS
                   (BY SRI SANJAY B. CHANAL, ADVOCATE FOR R1;
                   R2 IS MINOR REPRESENTED BY R1;
                   R3 NOTICE IS DISPENSED WITH)
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                                  NC: 2024:KHC-D:6351-DB
                                         RFA No. 100550 of 2019




     THIS REGULAR FIRST APPEAL FILED UNDER SEC. 96 OF CPC.,
PRAYING TO ALLOW THIS APPEAL BY SET ASIDE THE JUDGMENT
AND DECREE DATED 25.04.2017 PASSED IN O.S.NO.85/2014 ON
THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, BAGALKOT AND
DISMISS THE SUIT OF THE PLAINTIFF IN THE INTEREST OF JUSTICE
AND EQUITY.

      THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY
E.S.INDIRESH, J., DELIVERED THE FOLLOWING:

                              JUDGMENT

This First Appeal is preferred by defendant No.2

challenging the judgment and decree dated 25.04.2017

passed in Original Suit No.85/2014 on the file of the

Principal Senior Civil Judge, Bagalkot (for short,

hereinafter referred to as 'Trial Court'), decreeing the suit

of the plaintiffs.

2. For the sake of convenience, the parties are

referred to as per their ranking before the Trial Court.

3. It is the case of the plaintiffs that, plaintiff No.1

is the wife of defendant No.1 and in their wedlock plaintiff

No.2 born. It is stated in the plaint that, suit 'B' schedule

properties are the joint family properties of the plaintiffs

and defendant No.1 and therefore it is claimed by the

plaintiffs that, the plaintiffs are also entitled for share in

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the suit schedule properties. It is further averred in the

plaint that the defendant No.1 without the consent of the

plaintiffs, entered into a Sale Agreement with the

defendant No.2 in respect of the portion of the suit

schedule properties and thereafter, the defendant No.2

has filed O.S. No.90/2011 before the Competent Civil

Court seeking relief of specific performance of agreement

entered into between the defendant No.1 with the

defendant No. 2. It is further averred in the plaint that,

the plaintiffs were not aware about the proceedings in O.S.

No.90/2011 and the said suit was decreed exparte and

therefore, the plaintiffs contended that the judgment and

decree passed in O.S. No.90/2011 is not binding on the

plaintiffs and as such the plaintiffs have filed O.S.

No.85/2014 on the file of the Trial Court seeking relief of

partition and separate possession in respect of the suit

schedule properties.

4. After service of notice, the defendant No.1

failed to appear before the Trial Court and accordingly the

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defendant No.1 placed exparte. Defendant No.2 entered

appearance and filed written statement denying the

averments made in the plaint. It is the specific case of the

defendant No.2 that, the defendant No.1 has sold the land

bearing Survey No.109 of Sharadal village, to an extent of

3 acres out of 7 acres 20 guntas by receiving sale

consideration amount and accordingly executed the

Agreement of Sale. The defendant No. 2 further contended

that the defendant No.1 failed to execute the registered

sale deed and as such the defendant No.2 has filed O.S.

No.90/2011 before the Competent Civil Court seeking

relief of specific performance of contract and the said suit

came to be decreed, whereby the Trial Court decreed the

suit with a direction to the defendant in the said suit to

execute the registered sale deed in respect of suit

schedule properties. It is further contended by the

defendant No.2 that, the defendant No.2 has filed

Execution Petition No.27/2011, seeking execution of the

judgment and decree dated 09.02.2012 in O.S.

No.90/2011 and pursuant to the proceedings thereunder,

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a registered sale deed was executed in favour of the

defendant No.2 through Court Commissioner. Hence, it is

the case of the defendant No.2 that the plaintiffs have no

right and title in respect of the land bearing Survey

No.109/2 measuring 3 acres of Sharadal Village and

accordingly sought for dismissal of the suit.

5. The Trial Court, based on the pleadings on

record, has formulated following issues and additional

issue for its consideration:

"Issues

1. Whether minor plaintiff No.2 through his guardian plaintiff No.1 proves that, the suit schedule "B" and "C" properties are the hindu un-divided ancestral joint family properties of plaintiffs and defendant No.1?

2. Whether minor plaintiff No.2 through his guardian plaintiff No.1 proves that, themselves and defendant No.1 are in joint possession and enjoyment over the "B" and "C" schedule properties?

3. Whether defendant No.2 proves that, he is the bona part purchaser of the land an

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extent of 3Acre out of Acre-20 guntahs in R.S.No.109 of Sharadal village as per the court commissioner appointed for executing registered sale deed in EP No.27/2011?

4. Whether minor plaintiff No.2 trough his guardian plaintiff No.1 proves that, is entitled share in "B" and "C" schedule of the plaint as prayed for?

5. What order or decree ?

Additional Issues

1. Whether the suit is in time?

2. Whether there is cause of action for filing this suit?

3. Whether the court fee paid is sufficient?"

6. In order to establish their case, plaintiff No.1

was examined as PW.1 and produced 16 documents,

which were marked as Exhibits P.1 to P.16. On the other

hand, defendant No.2 was examined as DW.1 and

produced 3 documents, which were marked as Exhibits

D.1 to D.3.

7. The Trial Court, after considering the material

on record, by its judgment and decree dated 25.04.2017,

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decreed the suit holding that, the plaintiff Nos.1 and 2 are

entitled for 1/3rd share each in suit 'B' and 'C' schedule

properties. The operative portion of the said judgment

and decree reads as under:

"ORDER The suit of the plaintiffs is hereby decreed.

The plaintiffs No.1 and 2 are entitled for 1/3rd share each in all 2/3rd share in the suit "B" and "C" schedule properties.

It is declared the judgment and decree passed in O.S.No.90/2011 dated:9.2.2012 on the filed of Prl. Civil Judge & JMFC., Bagalkot and registered sale deed dated:18.9.2013 executed by the compensation in respect of suit "B"

schedule item No.2 property is not binding upon the 2/3rd share of plaintiffs.

Consequently, the defendant No.2 or any one acting on his behalf are hereby restrained from interfering with the plaintiffs' possession and enjoyment of the suit "B" schedule item No.2 property."

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8. Feeling aggrieved by the judgment and decree

dated 25.04.2017 in O.S. No.85/2014, the defendant No.2

has preferred this Regular First Appeal.

9. We have heard Shri. Prakash N. Hosamane,

learned counsel appearing for appellant; Shri. Sanjay B.

Chanal, learned counsel appearing for respondents.

10. Shri. Prakash N. Hosamane, learned counsel

appearing for appellant contended that, the defendant

No.2 is the bonafide purchaser of the land in question and

the plaintiffs were aware about the sale transaction made

between the defendant No.1 with defendant No.2 and

despite the same the Trial Court has committed an error in

holding that the plaintiffs are entitled for 1/3rd share each

in the suit schedule properties and accordingly it is

submitted that, in the event of the said judgment and

decree passed by the Trial Court is enforced against the

defendant No.2 and same would affect the judgment and

decree passed by the Trial Court in O.S. No.90/2011,

where the defendant No.2 succeeded in the said suit.

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Accordingly, learned counsel appearing for the appellant

sought for interference.

11. Per contra, Shri. Sanjay B. Chanal, learned

counsel appearing for respondents supported the

impugned judgment and decree passed by the Trial Court

and further argued that, the plaintiff No.2 born on

22.06.2002 in wedlock of the plaintiff No.1 with defendant

No.1 and as the subject matter of the suit is the joint

family property of the plaintiffs and defendant No.1,

accordingly argued that the Trial Court rightly, awarded

1/3rd share each to the plaintiffs in the suit schedule

properties.

12. Having heard the learned counsel appearing for

the parties and taking into consideration the grounds

urged in the memorandum of appeal, the following points

arise for consideration:

i) Whether the judgment and decree passed by the Trial Court is just and proper?

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ii) Whether the defendant No.2, has established that the judgment and decree in O.S. No.90/2011 is affected by virtue of judgment and decree in O.S. No.85/2014?

iii) What order?

13. Having taken note of the submission made by

learned counsel appearing for the parties and in order to

understand the relationship between the parties, the

following genealogical tree reads as under:

Chidambar Kulkarni (defendant no.1)

Yankamma Kulkarni (wife, plaintiff no.1)

Gopalkrishna Kulkarni (Son Plaintiff no.2)

14. On perusal of the genealogical tree it is not in

dispute that, the defendant No.1 is the husband of plaintiff

No.1 and in their wedlock plaintiff No.2 born. Defendant

No.2 is the purchaser of the portion of the land in question

from defendant No.1 pursuant to the execution of the

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Agreement of Sale as well as the judgment and decree in

O.S. No.90/2011.

15. On perusal of Ex.P.1 to P.3 would indicate that,

the suit schedule properties are the joint family properties

of plaintiffs and defendant No.1. Though the defendant

No.2 has disputed the relationship between the plaintiff

No.1 with defendant No.1, however admits in the cross

examination that they are husband and wife and therefore,

there is no dispute between the parties relating to their

relationship. Nextly, we have given our anxious

consideration to the judgment and decree dated

09.02.2012 in O.S. No.90/2011 (Ex.P.10), wherein the

defendant No.2 has filed suit seeking relief of specific

performance and the said suit was decreed exparte on the

ground that, the defendant No.1 failed to appear before

the Court below. It is also forthcoming from the records

that, the sale deed has been executed in favour of the

defendant No.2 through Court Commissioner. However,

the case of the plaintiffs that the suit schedule properties

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are the joint family properties and plaintiff No.2 was born

prior to the execution of the Agreement of Sale. The Sale

Agreement was executed on 16.04.2008 and therefore, in

the event if the defendant No.1 needs to sell the suit

schedule properties, the plaintiffs have to prove that the

said sale has been made for family/legal necessity.

Perusal of the evidence of PW.1 would indicate that there

was no necessity for defendant No.1 to execute the

registered agreement in favour of defendant No.2 for legal

necessity. In that view of the matter, taking into

consideration that the plaintiffs have proved that they are

entitled for 1/3rd share each in the suit schedule

properties, we are of the opinion that the finding recorded

by the Trial Court on issue No.1 is just and proper and as

the sale of the subject matter of the property in favour of

the defendant No.2 is not for legal necessity and therefore,

the Trial Court rightly, decreed the suit holding that the

plaintiffs are entitled for 1/3rd share each in the suit

schedule properties. Points for determination referred to

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above favours the plaintiffs and we do not find any merits

in the appeal. Hence, we pass the following:

ORDER

1) Regular First Appeal is dismissed.

2) Judgment and decree dated 25.04.2017 passed in Original Suit No.85/2014 on the file of the Principal Senior Civil Judge, Bagalkot, is confirmed.

          3)         However, dismissal of the appeal would not
                     come       in   the       way     for    the

appellant/defendant No.2 to work out his remedy in the Final Decree Proceedings with regard to the share of the defendant No.1 with whom the plaintiffs are claiming right in the suit schedule properties, if so advised.

Sd/-

JUDGE

Sd/-

JUDGE