Karnataka High Court
Vithal S/O Late Ganpathi Ors vs Shanker S/O Late Narsappa Dhobi on 5 August, 2024
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RSA No. 7231 of 2012
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR SECOND APPEAL NO.7231 OF 2012 (DEC/INJ)
BETWEEN:
1. VITHAL S/O LATE GANPATHI DHOBI,
AGED ABOUT 57 YEARS, OCC: AGRICULTURE,
R/O VILLAGE HIPPALGAON,
TQ. & DIST. BIDAR-585 401.
2. SHARNAPPA S/O LATE GANPATHI DHOBI,
AGED ABOUT 47 YEARS, OCC: AGRICULTURE,
R/O VILLAGE HIPPALGAON,
TQ. & DIST. BIDAR-585 401.
3. KALLAPPA S/O LATE GANPATHI DHOBI,
AGED ABOUT 37 YEARS, OCC: AGRICULTURE,
R/O VILLAGE HIPPALGAON,
TQ. & DIST. BIDAR-585 401.
Digitally signed
by RENUKA
...APPELLANTS
Location: HIGH
COURT OF (BY SRI K. M. GHATE, ADVOCATE)
KARNATAKA
AND:
1. SHANKER S/O LATE NARSAPPA DHOBI,
AGED ABOUT 67 YEARS, OCC: DRY CLEANER,
R/O VILLAGE HIPPALGAON,
TQ. & DIST. BIDAR-585 401.
2. MARUTI S/O LATE NARSAPPA DHOBI,
AGED ABOUT 62 YEARS, OCC: DRY CLEANER,
R/O VILLAGE HIPPALGAON,
TQ. & DIST. BIDAR-585 401.
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RSA No. 7231 of 2012
3. KASHINATH S/O VISHWANATH BIRADAR,
AGED ABOUT 57 YEARS, OCC: AGRICULTURE,
R/O VILLAGE HIPPALGAON,
TQ. & DIST. BIDAR-585 401.
...RESPONDENTS
(SRI SHIVAKUMAR KALLOOR, ADVOCATE FOR R3;
V/O DTD. 25.11.2016, NOTICE TO R1 IS DISPENSED WITH;
V/O DTD. 07.04.2016, NOTICE TO R2 IS HELD SUFFICIENT)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE OF THE
FIRST APPELLATE COURT IN REGULAR APPEAL NO.89/2009 ON
THE FILE OF THE ADDITIONAL DISTRICT AND SESSION JUDGE
AT BIDAR DATED 30TH MAY 2012 DECREE SIGNED ON 15 TH
JUNE 2012 AND THE JUDGMENT AND DECREE DATED 28TH JULY
2009 IN O.S.NO.192/2002 PASSED BY THE PRINCIPAL CIVIL
JUDGE (SENIOR DVN.), BIDAR AND THEREBY PLEASE TO
DECREE THE SUIT OF THE APPELLANT/PLAINTIFFS THROUGH
OUT WITH COSTS.
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE)
The plaintiffs in O.S.No.192/2002 on the file of the
Principal Civil Judge (Sr.Dn.), Bidar are before this Court,
challenging the concurrent findings.
2. Plaintiffs are assailing the judgment and decree,
dismissing the suit, which is confirmed by the Additional
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District Judge, Bidar (hereinafter referred to as 'First
Appellate Court') in R.A.No.89/2009. In terms of the
impugned judgments and decrees, the plaintiffs' claim
relating to ownership of 5 acres 7 guntas in Sy.No.61/A/1
of Hippalgaon village, Bidar Taluk and District is rejected.
3. This appeal is admitted on 06.09.2017 to
answer the following substantial questions of law:
"1. Whether the trial Court and the First Appellate
Court have committed any serious legal error
in drawing an inference that the 3rd defendant
became the owner in possession and
enjoyment of 2-Acres 7-Guntas of land in
Sy.No.61/A vide registered sale deed dated
22.03.1973, though his vendors had no
alienable title or possession over the said
extent of land?
2. Whether the trial Court and the First Appellate
Court have committed any serious legal error
in accepting the ownership of vendor's of
defendant no.3 in respect of sale deed dated
22.03.1973 as noted above to the extent sold
in the said sale deed i.e. 2-Acres 7-Guntas ?
3. Whether the trial Court and the First Appellate
Court have committed any serious legal error
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in framing the Issues and Points for
Consideration and whether they were
misguided themselves on the basis of the
pleadings of the parties?"
4. Vide order dated 31.07.2024, after considering
the materials on record, this Court framed one more
substantial question of law, which is as under:
"In a suit for declaration and injunction filed by
the co-owner of a property, against a purchaser from
another co-owner, whether the Court can pass a
preliminary decree for partition and separate
possession in favour of the purchaser, without there
being a counter claim or a prayer in the written
statement for partition and separate possession by
the purchaser?"
5. Heard the learned counsel appearing for both
sides on all substantial questions of law.
6. Learned counsel appearing for the appellants
Sri K.M. Ghate, drawing the attention of the Court to the
facts of the case would contend that originally the property
bearing Sy.No.61 measured 8 acres 7 guntas belonged to
Narasappa. Admittedly, Narasappa had five sons viz.,
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Saidappa, Shanker, Maruti, Ganapati and Shivappa.
According to the plaintiffs, Shivappa is said to have died
issueless. However, the defendants contend that Shivappa
is survived by his son Kashappa.
7. Sidappa, Shanker and Maruti have sold 3 acres
of land in Sy.No.61 out of 8 acres 7 guntas in favour of
mother of defendant No.3. The sale deed is dated
12.05.1971. There is no dispute about the said sale of
1971.
8. After the execution of the said sale deed,
5 acres 7 guntas remained with Ganapati and Shivappa is
the contention of the plaintiffs. However, the defendants
contend that Kashappa-the son of Shivappa has sold
1 acre 20 guntas to Maruti under a sale deed dated
15.06.1970.
9. According to Sri K.M. Ghate, Saidappa and
Maruti executed one more sale deed in respect of 3 acres
of land in favour of defendant No.3 under registered sale
deed dated 22.03.1973. This sale deed is in question.
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10. Ganapati S/o propositus Narasappa, the father
of the plaintiffs is not a party to any of the two sale deeds
referred to above. Ganapati died in the year 1982.
Plaintiffs who are the sons of Ganapati filed the suit
seeking a declaration of ownership that they are the
owners of Sy.No.61 measuring 5 acres 7 guntas and also
sought consequential relief of injunction. Plaintiffs also
sought a declaration that the aforementioned sale deed
dated 22.03.1973 is not binding on the plaintiffs and
consequential relief of injunction is also sought for.
11. In the said suit, the brothers of Ganapati
(plaintiffs' father) namely, Shanker and Maruti are arrayed
as defendants No.1 and 2 and defendant No.3 is the
purchaser.
12. The suit was contested by defendant No.3.
Defendants No.1 and 2 remained exparte.
13. The Trial Court has dismissed the suit on the
premise that the plaintiffs cannot question the registered
sale deed of 1971.
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14. Sri K.M. Ghate, learned counsel for the
appellants urged
- that, issue No.3 is wrongly framed relating to the
proof of registered sale deed dated 12.05.1971,
though the validity of the sale deed dated
12.05.1971 was not in issue;
- that, the issue ought to have been framed relating to
the validity of the sale deed dated 22.03.1973;
- that, despite the sale deed of 1973, plaintiffs' father
Ganapati remained in possession of 5 acres 7 guntas
and after the death of the plaintiffs' father, the
plaintiffs continued to be in possession;
- that, despite a clear admission by the mother of
defendant No.3 that the plaintiffs are in exclusive
possession of 5 acres 7 guntas, the Trial Court
dismissed the suit;
- that, there was a partition in the family of defendant
No.3 in the year 1989 and in the said partition deed,
there is no reference to the sale dated 22.03.1973
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and they have partitioned only the properties
purchased vide sale deed dated 12.05.1971. Thus, it
would establish the fact that defendant No.3 and his
family members are not in possession of 3 acres,
which is alleged to have been purchased vide sale
deed dated 22.03.1973;
- that, after the death of Ganapati (the father of the
plaintiffs), mutation was changed in the names of the
plaintiffs in respect of 5 acres 7 guntas of land in
Sy.No.63 and the said mutation is not questioned by
defendant No.3 or his family members.
All these aspects have been completely overlooked
by the Trial Court as well as the First Appellate Court.
Therefore, the impugned judgments and decrees are
unsustainable is the submission.
15. The learned counsel appearing for respondent
No.3/defendant No.3 urged that the plaintiffs have
suppressed the material fact that Shivappa, the son of
Narasappa is survived by son Kashappa. It is also urged
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that Kashappa has sold 1 acre 20 guntas to his uncle
Maruti on 15.06.1970 and later, same is acquired by
defendant No.3 on 12.05.1971 and the said sale is not
questioned. It is also urged that Ganapati or his sons
cannot claim any right in the property, which belonged to
Saidappa, Shivappa, Shanker and Maruti - the sons of
Narasappa. Thus, it is urged that the plaintiffs have no
locus to question the sale deed executed by Saidappa,
Shivappa, Shanker and Maruti.
16. This Court has considered the contentions
raised at the Bar.
17. Though Sri K.M. Ghate, learned counsel for the
appellants has vehemently urged that the mutations based
on the sale deeds in favour of defendant No.3 are not
certified, that by itself does not mean that the sale deeds
are invalid. Admittedly, Saidappa, Shivappa, Shanker and
Maruti had right in the property inherited by them after
the death of their father Narasappa. Of course, Ganapati -
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the plaintiffs' father also inherited the property along with
his brothers named above.
18. The mother of defendant No.3 has admitted
that the plaintiffs are still in possession of the property
purchased by defendant No.3. Merely because defendant
No.3 is not in possession of the property purchased by
him, it cannot be said that he is not the owner of the
property. The ownership is transferred to defendant No.3
based on the registered sale deed of 1973, as well as
1971. That right will be lost only in case the plaintiffs who
are in possession claim adverse possession against
defendant No.3. No such claim is made. Omission on the
part of the revenue officials to enter the name of
defendant No.3 in the property record for a long period
does not take away the ownership of defendant No.3 over
the property purchased by him.
19. Though the plaintiffs have challenged the
legality of the sale deed, it is relevant to note that what is
sold is not the property of plaintiffs' father Ganapati.
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What is sold is the property of Saidappa, Shivappa,
Shanker and Maruthi. Thus, neither plaintiffs' father
Ganapati, nor the children of Ganapati can challenge the
sale deed as long as the share of the plaintiffs' father
Ganapati is not sold.
20. It is also relevant to note that sale of undivided
share is also permissible in the eye of law. This being the
position, the suit challenging the sale deed of 1973 is not
maintainable. Though the Trial Court has framed an issue
relating to validity of sale deed of 1971 which was the sale
deed in question, the discussion in the judgment would
also cover the issue of validity of sale deed of 1973 though
no specific reference is made to the sale deed of 1973 in
the issue.
21. Admittedly, Narasappa died leaving behind five
sons namely, Saidappa, Shanker, Maruti, Ganapati and
Shivappa. It appears that, there was a partition among the
children of Narasappa and for this reason, sale of 3 acres
in favour of respondents under registered sale deed of
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1971 by Saidappa, Shanker and Maruti is not in dispute.
Appellants admit the possession of defendant No.3 based
on the said sale deed.
22. It is not disputed that branch of Shivappa
possessed 2 acres 7 guntas. Shivappa's son Kashappa
executed sale deed in favour of Maruti. However,
Kashappa has sold 1 acre 20 guntas and not 2 acres 7
guntas. It appears, the remaining 27 guntas of land is in
possession of the present appellants. Since the contesting
respondent has not purchased entire portion of 2 acres 7
guntas, he cannot make a claim in respect of that 27
guntas and can claim right over 1 Acre 20 guntas under
the sale deed of Kashappa to Maruti and which is later sold
by Maruti.
23. As far as defendant No.3 is concerned, it is
noticed that he is in possession of 3 acres of land which
has already purchased under the sale deed of 1971 and it
is also evident that defendant No.3 is not in possession of
1 acre 20 guntas of land which is the property sold by
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Marurti, which Maruti had purchased from Kashappa. It is
admitted in the cross-examination that plaintiffs are in
possession of the said land. However, plaintiffs have title
over only 3 acres and defendant No.3 has title over 1 acre
20 guntas in the suit land, in addition to 3 acres, which is
purchased in 1971. Said 3 acres is already in their
possession and same is admitted by the plaintiffs. Balance
27 guntas in the said land belongs to Kashappa or his legal
heirs. Defendant No.3 is not in possession of 1 acre 20
guntas of land purchased from Maruti.
24. It is well settled position of law that in case a
third party who is not a member of the family purchases
the property which is in joint possession and enjoyment of
the another member of the family of the vendor, then the
3rd party purchaser cannot claim to be in exclusive
possession of any portion of the property along with the
co-sharers. The remedy for such purchaser is to file a suit
for partition and separate possession. In the instant case,
defendant No.3-the purchaser has not taken any steps to
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file a suit for partition of 1 acre 20 guntas which belonged
to Kashappa and later sold to Maruti and then defendant
No.3. However, the rights of the parties i.e. the rights of
the plaintiffs and rights of the defendant No.3-the
purchaser are conclusively adjudicated in this appeal filed
by the co-owner seeking declaration of title and injunction.
Nothing more is required to be adjudicated to ascertain
the right of defendant No.3 based on the sale deed of
1971 and 1973. Thus, defendant No.3 can maintain a suit
for partition and separate possession of his share i.e.
1 acre 20 guntas. Instead of driving defendant No.3 to one
more round of litigation, this Court in exercise of power
under Order 41 Rule 33 of CPC would grant a Preliminary
Decree for partition and separate possession of the share
purchased by defendant No.3 from Shivappa, Shanker and
Maruti. Accordingly, the judgment and decree passed by
the Trial Court are modified.
25. Defendant No.3 is entitled to seek partition and
separate possession of 1 acre 20 guntas which is
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purchased by Maruti from Kashappa under the sale deed
of 1971 and later sold to defendant No.3. It is also made
clear that while effecting the demarcation of 1 acre 20
guntas purchased by a contesting defendant No.3, the
preference should be given to the appellants who are in
possession of the property and claim to have developed
the property, to choose their 3 acres of property bearing
Survey No.61/A/1.
26. It is further made clear that the appellant shall
co-operate in demarcation and separate possession of
1 acre 20 guntas which is to be handed over to defendant
No.3.
27. Defendant No.3 is permitted to initiate final
decree proceedings on payment of court fee towards his
share.
28. In case defendant No.3 seeks to file final decree
proceeding for partition and separate possession, he shall
also implead Kashappa and in case he is not alive,
Kashappa's descendants as parties to the final decree
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proceedings. In such an event, in case Kashappa or his
descendants or assignees make a claim for allotting their
share by partition by metes and bounds, they shall be
allotted 27 guntas in the suit land.
29. If there is no claim by Kashappa or any one
claiming under or through him, then the said 27 gunats
will remain with the appellants and defendant No.3 shall
not have any claim over it.
30. Hence, the following:
ORDER
i) The appeal is allowed in part.
ii) The judgment and decree dated 28.07.2009
passed by Senior Civil Judge, Bidar in
O.S.No.192/2002 and the judgment and decree
dated 30.05.2012 passed by the District Judge,
Bidar in R.A.No.89/2009 are modified.
iii) The Preliminary decree is passed for
demarcation and separate possession of the
share of 1 acres 20 guntas, out of 5 acres 7
guntas in Survey No.61/A/1 of Hippalgaon
village, Taluk Bidar purchased by defendant
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No.3 under the registered sale deed dated
22.03.1973.
iv) Defendant No.3 is permitted to initiate the final
decree proceeding for partition and separate
possession of 1 acre 20 guntas out of 5 acres
7 guntas in Survey No.61/A/1 of Hippalgaon
village, Taluk Bidar purchased by defendant
No.3 under the registered sale deed dated
22.03.1973.
v) In the said proceedings, defendant No.3 shall
also implead Kashappa and in case he is not
alive, his descendants as parties to the final
decree proceedings.
vi) If Kashappa or his descendants or assignees
make a claim for allotting their share by
partition by metes and bounds, they shall be
allotted 27 guntas in the suit land.
vii) If there is no claim by Kashappa or any one
claiming under or through him, then the said 27
gunats will remain with the plaintiffs/ appellants
and defendant/ respondent No.3 shall have not
any claim over it.
viii) Since the appellants have developed the
properties from the beginning, the share of the
appellants to be carved in respect of the area
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developed by them. Then the preference shall
be given to Kashappa or his descendants.
ix) The 3 acres of property purchased under the
registered sale deed dated 12.05.1971 shall not
be subject matter of final decree proceeding, as
defendant No.3/responndet No.3 is already said
to be in possession of the same.
x) No order as to costs.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
Brn/Chs
CT:PK
