Karnataka High Court
Mallikarjun Shankaragouda Rotti vs Bhimawwa W/O Rudrappa Hadali on 9 February, 2024
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NC: 2024:KHC-D:3023
RSA No. 100354 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 9TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
REGULAR SECOND APPEAL NO.100354/2016(DEC/INJ)
BETWEEN:
MALLIKARJUNGOUDA SHANKARAGOUDA ROTTI,
AGE ABOUT 49 YEARS,
OCC: AGRICULTURE,
R/O: ASUTI, TQ: RON,
DIST: GADAG - 582 209.
...APPELLANT
(BY SRI ARAVIND D. KULKARNI, ADVOCATE)
AND:
1. SMT. BHIMAWWA
W/O. RUDRAPPA HADALI,
AGE:59 YEARS,
OCC: HOUSEHOLD WORK,
R/O: ASUTI, TQ: RON,
DIST: GADAG - 582 209.
Digitally
signed by 2. ADIVEPPA
VINAYAKA S/O. RUDRAPPA HADALI,
BV
AGE: 69 YEARS, OCC:AGRICULTURE,
R/O: ASUTI, TQ: RON,
DIST: GADAG - 592 203.
3. YALLAPPA S/O. ADIVEPPA HADALI,
AGE: 41 YEARS, OCC:AGRICULTURE,
R/O: GAVARAWAD, TQ: GADAG,
DIST: GADAG - 582 102.
4. HANAMAPPA
S/O. ADIVEPPA HADALI,
AGE:40 YEARS, OCC:AGRICULTURE,
R/O: GAVARAWAD,
TQ: GADAG - 582 102.
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RSA No. 100354 of 2016
5. SMT. PARWATEWWA
W/O. ADIVEPPA HADALI,
AGE:64 YEARS,
OCC: HOUSEHOLD WORK,
R/O: GARAWAD,
DIST: GADAG - 582 102.
NINGAPA S/O. IRABASAPPA HADALI,
SINCE DECEASED BY HIS LRS.,
6. KARIYAWWA
W/O. NINGAPPA HADALI,
AGE:79 YEARS, OCC:HOUSEHOLD WORK,
R/O: ASUTI, TQ: RON,
DIST: GADAG - 592 203.
7. SMT. NINGAWWA
W/O. SANNA NIMBANNA GORAWAR,
AGE:54 YEARS, OCC:AGRICULTURE,
R/O: UPPINABETAGERI,
DIST: KOPPAL - 580 206.
8. IRAWWA MALLAPPA CHIMMANAKATTI,
AGE:54 YEARS, OCC:AGRIL.,
R/O: HALAKURKI, NOW
R/AT: ASUTI, TQ: RON,
DIST: GADAG - 592 203.
9. MALLAWWA
W/O. GAVISIDDAPPA HUJARATTI,
AGE: 65 YEARS, OCC:AGRIL.,
R/O: YAREHANCHINAL,
TQ: YALABURGA, DIST: KOPPAL - 583 232.
10. AKKAMAHADEVI
W/O. MARIYAPPA KOUJAGERI,
AGE:69 YEARS, OCC:AGRIL.,
R/O: KARAMUDI,
TQ:RON, DIST:GADAG.
11. RATNAWWA
W/O. MALLAPPA ITTAPPANAVAR,
AGE:39 YEARS, OCC:AGRIL.,
R/O: Y.S.HADAGALI,
TQ: RON, DIST: GADAG - 583 219.
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RSA No. 100354 of 2016
12. DRAXAYANI
W/O. NEELAPPA CHIMMANAKATTI,
AGE:34 YEARS, OCC:AGRIL.,
R/O: HALAKURKI, TQ: BADAMI,
DIST: BAGALKOT 587 201.
13. VEERABASAPPA @ IRABASAPPA
S/O NINGAPPA HADALI,
AGE:49 YEARS, OCC:AGRIL.,
R/O: ASUTI, TQ: RON,
DIST: GADAG - 592 203.
14. SHIVAPPA S/O. NINGAPPA HADALI,
AGE:54 YEARS, OCC:AGRIL.,
R/O: ASUTI, TQ: RON,
DIST: GADAG - 592 203.
15. DYAMAPPA S/O. NINGAPPA HADALI,
AGE:49 YEARS, OCC:AGRIL.,
R/O: ASUTI, TQ: RON,
DIST: GADAG - 592 203.
16. CHANNAPPA S/O. NINGAPPA HADALI,
AGE:44 YEARS, OCC:AGRIL.,
R/O: ASUTI, TQ: RON,
DIST: GADAG - 592 203.
17. YALLAPPA RUDRAPPA HADALI,
AGE:60 YEARS, OCC:AGRIL.,
R/O: ASUTI, TQ: RON,
DIST: GADAG - 592 203.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF C.P.C., AGAINST
THE JUDGMENT AND DECREE DATED 06.02.2016 PASSED IN
R.A.NO.13/2012 ON THE FILE OF THE ADDITIONAL DISTRICT AND
SESSIONS JUDGE, GADAG, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 14.12.2011
PASSED IN O.S.NO.73/2006 ON THE FILE OF THE SENIOR CIVIL
JUDGE, RON, PARTLY DECREEING THE SUIT FILED FOR
DECLARATION AND CONSEQUENTIAL RELIEF OF PERPETUAL
INJUNCTION.
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RSA No. 100354 of 2016
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The defendant No.2 in O.S No.73/2006 on the file of
Senior Civil Judge, Ron has filed this Regular Second Appeal
challenging the judgment and decree dated 14.12.2011 passed
therein as well as the concurring judgment and decree passed
by the first appellate court, namely, Addl. District and Sessions
Judge at Gadag in R.A No.13/2012 vide judgment and decree
dated 06.02.2016.
2. The suit in O.S No.73/2006 was filed for declaration
and perpetual injunction in respect of 3 acres 20 guntas of land
in R.S No.258/1+2B situated at Asuti village, Ron taluk. The
plaintiffs claimed that they and defendants No.1 and 3 to 6
were the members of the joint family and there were disputes
regarding the properties. A suit in O.S No.44/1999 was filed
for partition and separate possession. The said suit was
decreed in part holding that the plaintiff No.1 and his sons were
entitled to ½ share in the suit properties which included in the
aforementioned properties. The defendant No.1 had sold his
share in favour of the defendant No.2 on 17.10.2006 though
there was no partition based on the decree passed in O.S
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No.44/1999. The plaintiffs claimed that the said sale was
void-ab-initio, and not binding upon them as well as the
defendants No.1, and 3 to 6.
3. The suit was contested by the defendant No.2 who
claimed that the suit property belonged to the defendant No.1
and that he had every right to possess, enjoy and encumber
the same. He claimed that there was a plaintiffs and the
defendants No.1, and 3 to 6 in the year 1979 itself in respect of
which, M.E No.5646 was certified by the revenue authorities.
He claimed that the suit property was allotted to the husband
of the defendant No.1 in the family partition in the year 1966
and after his death the defendant No.1 and her son succeeded
to the suit property. The defendant No.2 therefore tried to
contend that the sale of the suit property by the defendant
No.1 was proper, valid and binding on the plaintiffs as well.
4. The trial court after considering the oral and
documentary evidence decreed the suit declaring that the
plaintiffs were entitled to an equal share in the suit properties.
It held that final decree proceedings was not initiated based on
the preliminary decree for partition and therefore, the sale
brought about by the defendant No.1 was unconscionable and
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did not bind the rights of the plaintiffs. It also noticed that the
defendant No.2 had filed RFA No.100158/2014 before this
Court which is pending consideration. Consequently, it decreed
the suit and declared that the sale deed brought about by the
defendant No.1 in favour of the defendant No.2 did not bind the
interest of the plaintiffs as well as the defendants No.1, and 3
to 6 and restrained the defendants No.1 and 2 from obstructing
the possession of the plaintiffs over the suit schedule property.
5. Being aggrieved by the said judgment and decree,
the defendant No.2 unsuccessfully challenged it before the first
appellate court in R.A No.13/2012.
6. Being aggrieved by the judgment of the trial court
and the first appellate court, the defendant No.2 has filed this
Regular Second Appeal.
7. Learned counsel for the defendant No.2 submitted
that the trial court held that the defendant No.2 was a bonafide
purchaser and therefore he was entitled to protect his
possession against forcible dispossession by the plaintiffs. She
submits that the defendant No.2 was in possession of the suit
property and therefore a mere suit for declaration and
injunction was not maintainable. He also contends that
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pursuant to the sale deed dated 17.10.2006, revenue records
were transferred to the name of the defendant No.2 which
established that he was in possession from the date of its
purchase and therefore a suit for mere declaration was not
maintainable.
8. I have considered the submissions of the learned
counsel for the defendant No.2.
9. The suit in O.S No.44/1999 was filed by the
plaintiffs for partition and separate possession of their share in
the properties which included the property involved in the
present suit. The defendant No.2 claimed to have purchased
the suit property on 17.10.2006 i.e. much later than the date
when O.S No.44/1999 for partition was decreed the preliminary
decree of partition did not conclude in a final decree and the
properties were not divided by metes and bounds. The
defendant No.1 could not have therefore sold a specified
property to defendant No.2. Therefore the defendant No.2 was
a pendente lite purchaser and not a bonafide purchaser as
held by the Apex Court in the case of Jagan Nath vs Jagadish
Rai & Ors, reported in AIR 1998 SC 2028. As rightly held
by the first appellate court, the interest if any, of the defendant
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No.2 was to the extent of the property that the defendant No.1
held in the suit property based on the decree of partition in O.S
No.44/1999. Therefore the sale deed brought about by the
defendant No.1 in favour of the defendant No.2 certainly did
not bind the plaintiffs and therefore the trial court as well as
the first appellate court were justified in decreeing the suit for
declaration that the sale deed in favour of the defendant No.2
did not bind the interest of the plaintiffs.
10. There is no error apparent to the face of the record
warranting interference by this Court. As no substantial
question of law arises for consideration, the appeal is
dismissed. However the decree that is passed in the present
suit shall be subject to the outcome of RFA No.100158/2014.
11. In view of disposal of the appeal on merits, pending
IAs, if any, also stand disposed off.
SD/-
JUDGE
PMP
CT-ASC
