Karnataka High Court
Sri. Chidanand S/O Ramachandra ... vs Sri. Mahadevappa S/O Ramachandra ... on 9 February, 2024
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NC: 2024:KHC-K:1426
RSA NO.200201 OF 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 09TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.200201 OF 2022 (DEC/INJ)
BETWEEN:
SRI. CHIDANAND
S/O RAMACHANDRA DHUMAGOND,
AGED ABOUT 51 YEARS,
OCC: GOVERNMENT HIGH SCHOOL TEACHER,
R/O DEVAR-NIMBARAGI,
INDI TALUK,
VIJAYAPURA DISTRICT - 586 209.
...APPELLANT
(BY SRI. ARUNKUMAR AMARGUNDAPPA, ADVOCATE)
AND:
SRI. MADEVAPPA
Digitally S/O RAMACHANDRA DHUMAGOND
signed by
SACHIN AGED ABOUT 57 YEARS,
Location: OCC: AGRICULTURE,
HIGH
COURT OF R/O DEVAR-NIMBARAGI,
KARNATAKA
INDI TALUK,
VIJAYAPURA DISTRICT - 586 209.
...RESPONDENT
(BY SRI. MANVENDRA REDDY AND SRI. NARENDRA M. REDDY,
ADVOCATES FOR C/R)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CIVIL PROCEDURE CODE AGAINST THE
JUDGMENT AND DECREE DATED 03RD SEPTEMBER, 2021
PASSED IN REGLAR APPEAL NO.14 OF 2017 ON THE FILE OF
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RSA NO.200201 OF 2022
THE SRNIOR CIVIL JUDGE AND JMFC., INDI, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 11TH APRIL, 2017 PASSED IN ORIGINAL SUIT NO.487
OF 2011 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND
JMFC, INDI.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the defendant challenging the
judgment and decree dated 03rd September, 2021 passed
in Regular Appeal No.14 of 2017 on the file of the Senior
Civil Judge and JMFC, Indi (for short, hereinafter referred
to as 'First Appellate Court'), dismissing the appeal and
confirming the judgment and decree dated 11th April, 2017
passed in Original Suit No.487 of 2011 on the file of the
Additional Civil Judge and JMFC, Indi (for short,
hereinafter referred to as 'Trial Court'), wherein the suit
filed by the plaint came to be decreed.
2. For the sake of convenience, the parties in this
appeal shall be referred to in terms of their status and
ranking before the Trial Court.
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RSA NO.200201 OF 2022
3. The plaint averments are that the plaintiff and
the defendant are brothers and it is the specific case of the
plaintiff that the plaintiff has purchased the suit schedule
property as per registered Sale Deed dated 18th April,
1994. It is the contention of the plaintiff that the
defendant, without interest in respect of the suit schedule
property, interfering with the same and hence, the plaintiff
has filed Original Suit No.487 of 2011 on the file of the
Trial Court, seeking relief of declaration and permanent
injunction.
4. After service of summons, defendant entered
appearance and filed detailed written statement
contending that the plaintiff is an Agriculturist and there is
no source of income to purchase the property by the
plaintiff. It is also stated that the defendant is the
Government servant and he is having sufficient income to
purchase the suit schedule property and as such, the
schedule property was purchased through the joint family
income and thereafter, the plaintiff relinquished his right in
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favour of the defendant. Accordingly, defendant sought
for dismissal of the suit.
5. On the basis of the rival pleadings, the Trial
Court has formulated issues for its consideration:
6. In order to establish the case, the plaintiff
examined 3 witnesses as PW1 to PW3 and produced 5
documents as Exhibits P1 to P5. On the other hand,
defendant has examined 6 witnesses as DW1 to DW6 and
produced 5 documents as Exhibits D1 to D5.
7. The Trial Court, after considering the material
on record, by its judgment dated 11th April, 2017, decreed
the suit of the plaintiff. Being aggrieved by the same, the
defendant preferred Regular Appeal No.14 of 2017 on the
file of the First Appellate Court and the same was resisted
by the plaintiff. The First Appellate Court, after re-
appreciating the facts on record, by its judgment and
decree dated 03rd September, 2021, dismissed the appeal
and confirmed the judgment and decree dated 11th April,
2017 passed by the Trial Court in Original Suit No.487 of
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RSA NO.200201 OF 2022
2011. Being aggrieved by the same, the
appellant/defendant has preferred this Regular Second
Appeal under Section 100 of CPC.
8. Heard Sri. Arunkumar Amargundappa, learned
counsel appearing for the appellant/defendant and Sri.
Manvendra Reddy and Sr. Narendra M. Reddy, learned
counsel appearing fro the respondent/plaintiff.
9. Sri. Arunkumar Amargundappa, learned counsel
appearing for the appellant/defendant contended that,
though the Sale Deed has been executed in favour of the
plaintiff, the sale proceeds have been made out of the
joint family property. He further contended that defendant
is the Government Servant working in the State of
Maharashtra and as such, there is no portion in the family.
Hence, it is the specific argument advanced by Sri.
Arunkumar Amargundappa, learned counsel appearing for
the appellant/defendant that the plaintiff has no source of
income to purchase the schedule property and accordingly
he sought for inference of this Court. He also refers to the
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relinquishment deed produced at Exhibit-D4 and argued
that, though the said document is unregistered, the same
could be accepted to prove that the schedule property is
belonging to the defendant and therefore sought for
setting aside the judgment ant decree passed by both the
Courts below.
10. Per contra, Sri. Manvendra Reddy and Sri.
Narendra M. Reddy, learned counsel appearing for the
respondent/plaintiff submit that the property in question
has been purchased by the plaintiff as per the registered
Sale Deed produced at Exhibit-D1 and that apart, if at all
the property has been acquired by the members of the
joint family, it was always open for the defendant to make
a claim for partition and in the absence of the same, it is
argued that the finding recorded by both the Courts below
are just and property. In order to buttress their
arguments learned counsel appearing for the
respondent/plaintiff relied upon the judgment of the
Hon'ble Apex Court in the case of K. ARUMUGA
VELLAIAH vs. P.R. RAMASAMY AND ANOTHER
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RSA NO.200201 OF 2022
reported in (2022)3 SCC 757 and argued that the
contents of the document would convey the intention of
the parties to the documents and as such, sought for
dismissal of the appeal.
11. Having heard the learned counsel appearing for
the parties and on perusal of original documents, it is not
in dispute that the parties are brothers. Defendant is
working as a Teacher in state of Maharashtra. The
property in question has been purchased by the plaintiff as
per the registered Sale Deed produced at Exhibit-D1. The
Principal argument of the defendant is that the plaintiff
has no source of income to purchase the schedule
property and the schedule property has been purchased
out of the income of the joint family and that apart, the
plaintiff himself has executed Exhibit D4 in favour of the
defendant. The suit filed is by the plaintiff for relief of
declaration based on the registered Sale Deed produced at
Exhibit-D1. In that view of the matter, the title to the
property is not in question. However, Exhibit-D4, though
not a registered Deed and will be considered to decide the
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lis as collateral purpose, however, such situation does not
occur in the circumstances of the case as the recital in the
Sale Deed produced at Exhibit-D1 makes it clear that the
plaintiff purchased the schedule property on his own
income. In that view the matter, both the courts below
have rightly come to the conclusion to decree the suit of
the plaintiff. Hence, the present appeal is liable to be
dismissed.
12. Therefore, I do not find any material
irregularities or perversity in the judgment and decree
passed by the Courts below and the present Regular
Second Appeal is liable to be dismissed. Since, the
appellant/defendant has not made out grounds for
formulation of substantial question of law as required
under Section 100 of Code of Civil Procedure; the appeal is
liable to be dismissed at the stage of Admission itself.
Accordingly, Regular Second appeal is dismissed.
Sd/-
JUDGE
ARK
