Karnataka High Court
Mr A S Abdul Kalam Azad vs Smt Lakshmamma on 22 April, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 990 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.990 OF 2012 (DEC)
BETWEEN:
MR A S ABDUL KALAM AZAD
AGED ABOUT 49 YEARS
S/O MR M H ABDUL SALAM
R/AT NO.1495, 6TH CROSS
IRWIN ROAD
MYSORE-570001
...APPELLANT
(BY SRI M D ALAVANDAR, ADVOCATE)
AND:
Digitally signed 1. SMT. LAKSHMAMMA
by DEVIKA M
AGED ABOUT 49 YEARS
Location: HIGH
COURT OF W/O SRI SEENE GOWDA
KARNATAKA R/O HANCHYA VILLAGE
KASABA HOBLI
MYSORE TALUK-570019
2. SMT. KEMPAMMA
AGED ABOUT 67 YEARS
W/O LATE NINGE GOWDA
R/AT NO.150, 1ST MAIN
KUMBARAKOPPAL
MYSORE-570001
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RSA No. 990 of 2012
3. SMT. MAHADEVAMMA
AGED ABOUT 54 YEARS
W/O LATE DODDAHAIDE GOWDA
R/O HANCHYA VILLAGE
KASABA HOBLI
MYSORE TALUK-570019
4. SRI RAJESHA
AGED ABOUT 36 YEARS
S/O LATE DODDAHAIDE GOWDA
R/O HANCHYA VILLAGE
KASABA HOBLI
MYSORE TALUK - 570 019
5. SMT. RADHA
AGED ABOUT 32 YEARS
D/O LATE DODDAHAIDE GOWDA
R/O HANCHYA VILLAGE
KASABA HOBLI
MYSORE TALUK - 570 019
6. SRI KEMPEGOWDA
AGED ABOUT 64 YEARS
S/O LATE EREGOWDA
R/O HANCHYA VILLAGE
KASABA HOBLI
MYSORE TALUK -570 019
7. SRI EREGOWDA
AGED ABOUT 54 YEARS
S/O LATE EREGOWDA
R/O HANCHYA VILLAGE
KASABA HOBLI
MYSORE TALUK - 570 019
8. SRI RAMEGOWDA
AGED ABOUT 49 YEARS
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RSA No. 990 of 2012
S/O LATE EREGOWDA
R/O HANCHYA VILLAGE
KASABA HOBLI
MYSORE TALUK - 570 019
...RESPONDENTS
(BY SRI N KUMAR, ADVOCATE FOR R1 & R2;
R3 TO R7 - SERVED)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & PRELIMINARY DECREE DTD 21.01.2012
PASSED IN R.A.NO.584/2011 ON THE FILE OF VI
ADDITIONAL DISTRICT JUDGE, MYSORE AND ETC.
THIS APPEAL, COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel appearing for the
appellant. The counsel for the respondent Nos.1 and 2 is
absent.
2. This second appeal is filed challenging the
judgment and decree of the First Appellate Court in
reversing the judgment of the Trial Court. The First
Appellate Court while reversing the judgment of the Trial
Court held that the sale deed dated 14.08.2002 executed
by defendant Nos.1 to 6 in favour of defendant No.7 in
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respect of the suit schedule property is not binding on the
share of the plaintiffs and the suit schedule property has
to be divided into six shares by metes and bounds and
plaintiff Nos.1 and 2 are entitled for 1/6th share each in the
suit schedule property. The plaintiffs are not entitled for
the mesne profits in the circumstances of the case. Being
aggrieved by the said judgment, the present second
appeal is filed.
3. The main grounds urged in this appeal is that
the appellant is the bonafide purchaser of the suit
schedule property for valuable consideration and the
plaintiffs are also bound by the purchase of the property
by defendant No.7 and defendant No.7 has acquired the
interest of all he other defendants and one Nagesh. When
such being the material available on record, the First
Appellate Court committed an error in reversing the
finding of the Trial Court. This Court considering the
grounds urged in the second appeal, framed the
substantial questions of law which read thus:
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1. Whether the grounds urged in the appeal by
defendant No.7 and bone of contention in
Regular Appeal No.584/2011 are distinct and
separate?
2. Whether defendant No.7 (subsequent
purchaser) has acquired the interest of all the
other defendants and one Nagesh?
3. Whether the plaintiff is bound by the purchase
of property by defendant No.7?
4. Whether defendant No.7 is a bonafide purchaser
for value?
4. The counsel for the appellant would vehemently
contend that the appellant while purchasing the suit
schedule property has taken note of the revenue records
and particularly order at Ex.D6 passed by the Tahsildar
which clearly discloses the Tahsildar has obtained the
report from the revenue inspector and then he has
changed the katha of the suit schedule property in the
name of defendant Nos.1, 4 to 6. The counsel also would
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vehemently contend that the appellant is a bonafide
purchaser of the suit schedule property and defendant
Nos.1 to 6 have not disclosed the details of plaintiffs and
having considered the material available on record
particularly, Ex.D6, the appellant proceeded to purchase
the property. The counsel also would vehemently contend
that there was a delay of 6 years in filing the suit that
means, he had purchased the property in the year 2002
but the suit was filed in the year 2008. The Trial Court
taken note of the material available on record and also
considered the fact that the suit schedule property, as on
the date of filing of the suit, is not at all in joint possession
or constructive possession and record discloses that
defendant No.7 was in lawful possession of the said
property as on the date of filing of suit. Apart from that
the Trial Court discussed with regard to alienation which
was made prior to 2002 and sale deed is of the year 2002
thus, it clearly shows that alienation of the suit schedule
property had taken place before cut of date of 20.12.2004.
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Hence, the order passed by the First Appellate Court is
erroneous. Hence, it requires interference.
5. Having heard the learned counsel appearing for
the appellant and considering the substantial question of
law framed by this Court, it is not in dispute that
admittedly the property belongs to Siddamma and the suit
schedule property was purchased in the name of
Siddamma in the year 1963 and the said Siddamma died
intestate. The main contention of the counsel for the
appellant that defendant Nos.1 to 6 did not disclose
anything about the existence of these plaintiffs. The Court
has to take note of the fact that whether defendant No.7
made his efforts before purchasing the property. No doubt,
the appellant claims that he had purchased the property
from defendant Nos.1 to 6. It is important to note that
though it is disputed that plaintiffs are not the daughters
of said Siddamma, nothing is elicited from the mouth of
witnesses PW1 and PW2. Their evidence is very clear that
they are the children of Siddamma and in the cross-
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examination of PW1 also though suggestion was made
that they are not daughters of Siddamma and Eregowda,
the same was categorically denied. Only contention raised
in the cross-examination that property value has
increased, hence, defendant Nos.1 to 6 have set up the
plaintiffs to challenge the sale deed, the same was also
denied. PW2 also speaks that the plaintiffs are the
daughters of Siddamma and Eregowda and she says that
the suit schedule property was standing in the name of
Siddamma at the time of selling the property.
6. On perusal of the evidence of DW1 it discloses
that though claims that he is a bonafide purchaser of the
suit schedule property, he categorically admits that he did
not obtain any genealogical tree of Siddamma. He claims
that he demands the same but the plaintiffs and defendant
Nos.1 to 6 not given the same. But it is the duty of the
purchaser to get the genealogical tree. Only he denied the
suggestion that the plaintiffs are the daughters of
Siddamma. He says that he is not aware of the same.
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Thus, only he pleaded ignorance and not specifically
denied that they are not the daughters of said Siddamma.
DW1 also admitted that he has not given any paper
publication before purchasing the property. The counsel
would vehemently contend that there is no any rule
stating that before purchasing the property, notification
has to be given. But when the appellant not made any
enquiry with regard to genealogical tree of Siddamma and
also admitted that there was no any impediment to take
out the paper publication and when defendant Nos.1 to 6
have not given any genealogical tree, the appellant ought
to have given paper publication but the same has not been
done. It is admitted that Siddamma had purchased this
property on 14.03.1963 and also admits the said sale deed
is also marked as Ex.P3. Hence, it is clear that the
property belongs to Siddamma. The appellant categorically
admits that he did visit the village and enquired with the
villagers that who are all the owners of the said property.
All these admissions of DW1 is clear that he has not made
any enquiry before purchasing the property. Thus, it is
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clear that the appellant is not the bonafide purchaser of
the suit schedule property.
7. It is important to note that the First Appellate
Court also while appreciating the material available on
record taken note of the admissions given by the appellant
during the course of cross-examination. In paragraph 21
of the judgment, the First Appellate Court taken note of
the contention of the plaintiffs that the suit schedule
property is the self-acquired property of Siddamma. The
plaintiffs have also produced the certified copy of the sale
deed at Ex.P3 which clearly reveals that Siddamma
purchased the suit schedule property on 14.03.1963.
Hence, it is clear that the suit schedule property is the
self-acquired property of Siddamma and the plaintiffs,
defendant Nos.4 to 6 and husband of defendant No.1 are
the legal heirs of Siddamma and they were in joint
possession of the suit schedule property. Though the
plaintiffs were not in actual possession of the suit schedule
property, the possession of co-sharer on behalf of other
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co-sharers would become the constructive possession.
Hence, the First Appellate Court answered the said point
as affirmative. Apart from that also while considering
points No.2 to 4, the First Appellate Court taken note of
the fact that the sale deed cannot be declared as null and
void since the other legal heirs of Siddamma have
executed the sale deed.
8. It is important to note that during the course of
cross-examination, a suggestion was made that defendant
Nos.1 to 6 have also joined along with the plaintiffs and
the said suggestion was denied. In paragraph 25 of the
judgment also taken note of the admission of DW1 which
clearly reveals that he did not obtain genealogical tree, he
did not publish any publication in the daily newspaper
calling upon any objection of any person for purchasing
the suit schedule property and also not made any enquiry
in the village to know that who are the owners of the
property. All these factors have been taken note of by the
First Appellate Court. Hence, I do not find any error
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committed by the First Appellate Court in reversing the
finding of the Trial Court. The First Appellate Court while
reversing the finding of the Trial Court taken note of the
shares by metes and bounds and held that plaintiff Nos.1
and 2 are also entitled for 1/6th share each in the suit
schedule property and made it clear that the plaintiffs are
not entitled for mesne profits and held that the sale deed
dated 14.08.2002 is not binding on the share of the
plaintiffs since they are not the parties to the said sale
deed. Hence, I do not find any error committed by the
First Appellate Court in passing such an order. Hence, the
very contention of the appellant's counsel that the
appellant is a bonafide purchaser cannot be accepted and
answered all the substantial questions of law accordingly.
Hence, there is no error on the part of the First Appellate
Court in appreciating both oral and documentary evidence
placed on record and no grounds are made out to set
aside the judgment of the First Appellate Court by the
appellant.
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9. In view of the discussions made above, I pass
the following:
ORDER
The regular second appeal is dismissed.
Sd/-
JUDGE
SN
