Karnataka High Court
Uttam And Anr vs Dattatreya And Ors on 12 February, 2024
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RSA No. 200339 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 200339 OF 2019 (PAR)
BETWEEN:
1. UTTAM
S/O BHAGAWANT SOLANKAR,
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O: HALALLI,
TQ: INDI, DIST: VIJAYAPUR.
2. SIDRAM S/O BEERAPPA SOLANKAR,
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O: HALALLI, TQ: INDI,
DIST: VIJAYAPUR.
...APPELLANTS
(BY SRI. D P AMBEKAR, ADVOCATE)
AND:
1. DATTATREYA
Digitally signed
by SACHIN
S/O RAMA SOLANKAR,
Location: HIGH
COURT OF
AGE: 28 YEARS,
KARNATAKA OCC: AGRICULTURE,
R/O: HALALLI,
TQ: INDI,
DIST: VIJAYAPUR-586122.
2. SUREKHA W/O SHARAD YEMAGAR,
AGE: 31 YEARS, OCC: H.H. WORK,
R/O: HALALLI,
TQ: INDI,
DIST: VIJAYAPUR-586122.
3. NAVANATH S/O RAMA SOLANKAR.
AGE: 24 YEARS, OCC: AGRICULTURE,
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RSA No. 200339 of 2019
R/O: HALALLI,
TQ: INDI,
DIST: VIJAYAPUR-586122.
4. LATA W/O RAMA SOLANKAR,
AGE: 52 YEARS, OCC: H.H. WORK,
R/O HALALLI,
TQ: INDI, DIST: VIJAYAPUR-586122.
5. RAMA S/O BHAGAWANT SOLANKAR,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O: HALALLI,
TQ: INDI,
DIST: VIJAYAPUR-586122.
6. NEELABAI D/O BHAGAWANT SOLANKAR,
AGE: MAJOR, OCC: AGRICULTURE,
R/O: HALALLI, TQ: INDI,
DIST: VIJAYAPUR-586122.
...RESPONDENTS
(R-1 TO R-6 SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF THE CPC,
PRAYING TO ALLOW THIS APPEAL & SET ASIDE THE
JUDGEMENT AND DECREE DATED 11.07.2019 PASSED BY THE
SENIOR CIVIL JUDGE & JMFC, INDI, DIST: VIJAYAPURA, IN RA
NO.53/2016, DISMISSING THE SAID APPEAL AND CONFIRMING
THE JUDGEMENT AND DECREE DATED 01.10.2016 PASSED BY
THE CIVIL JUDGE & JMFC, INDI, IN OS NO.313/2009,
DECREEING THE SAID SUIT, FURTHER DISMISS SAID OS
NO.313/2009, WITH COSTS THROUGH OUT.
THIS APPEAL, COMING ON FOR DICTATING JUDGEMENT,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 200339 of 2019
JUDGMENT
1. This appeal is filed by the defendant No.2 and 4
challenging the Judgment and Decree dated 11.07.2019
passed in R.A.No.53 of 2016 on the file of Senior Civil
Judge and JMFC, Indi, Vijayapura District, confirming the
Judgment and Decree dated 01.10.2016 in O.S.No.313 of
2009 on the file of Civil Judge and JMFC, Indi, holding that
the plaintiffs No.1 to 4 are entitled for 1/5th share each in
respect of suit lands.
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.
3. The plaint averments are that plaintiffs No.1 to 3 are
the children of defendant No.1 and plaintiff No.4. It is the
case of the plaintiffs that the suit schedule properties are
the ancestral properties of plaintiffs. It is further stated
that, the contesting defendants No.2 and 3 who are the
brother and sister of defendant No.1, got entered their
names in the record of rights. It is also stated that the
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defendant No.4 also managed to get enter his name in the
record of rights and feeling aggrieved by the same, the
plaintiffs have filed suit in O.S. No.313 of 2009 seeking
relief of partition and separate possession in respect of
suit schedule properties.
4. After service of notice, the defendant Nos. 1 and 4
entered appearance and filed written statement.
Defendant Nos. 2 and 3 have not appeared and placed ex-
parte. It is the specific case of defendant No.1 that the
defendant No.1 was suffering from tuberculosis and was
on prolonged treatment and as such, the defendant No.1
sold the schedule property in favour of defendant Nos.2
and 4 and accordingly, they 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 their case, plaintiff No.1 was
examined as PW1 and got marked 09 documents as
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Exs.P1 to P9. On the other hand, defendants have
examined two witnesses as DW1 and DW2 and produced
20 documents as Exs.D1 to D20.
7. The Trial Court, after considering the material on
record, by its Judgment and Decree dated 01.10.2016
decreed the suit of the plaintiffs holding that the plaintiff
Nos.1 to 4 are entitled for 1/5th share each in the suit
schedule properties and being aggrieved by the same, the
defendants Nos.2 and 4 have preferred Regular Appeal in
R.A.No.53 of 2016 on the file of First Appellate Court. The
said appeal was resisted by the plaintiffs. The First
Appellate Court, after re-appreciating the facts on record,
by its Judgment and Decree dated 11.07.2019, dismissed
the appeal and confirmed the Judgment and Decree
passed by the Trial Court in O.S.No.313 of 2009. Being
aggrieved by the same, the appellants/defendant No.2 and
4 have preferred this Regular Second Appeal under
Section 100 of CPC.
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8. This Court vide order dated 29.01.2024 formulated
the following substantial question of law for its
consideration:
" (i) Whether the properties sold by defendant
No.1 in favour of defendants No.2 and 4 is for
family and legal necessities?
(ii) Whether both the Courts below were justified
in arriving at a finding that the lands in question
are not sold for family and legal necessities? "
9. I have heard Sri. D.P. Ambekar, learned counsel
appearing for the appellants and respondents are served
but remained absent.
10. Sri D.P. Ambekar, learned counsel for the appellants
contended that both the Courts below have not properly
appreciated the evidence on record that the schedule
properties were sold by defendant No.1 for his legal and
family necessity and in this regard the medical documents
have been produced before the Trial Court and therefore,
he contended that the impugned Judgment and Decree
passed by the Courts below requires to be interfered with.
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He further submitted that, the defendant No.1 being the
Kharta of the family has every right to alienate the joint
family properties for legal necessity of his medical
treatment and accordingly, he sought for interference of
this Court.
11. Having taken note of the submissions made by the
learned counsel appearing for the appellants, I have
carefully examined the original records. It is not in dispute
with regard to the relationship between the parties and the
genealogical tree is as follows:
Bhagawant Solanka (dead)
Rama Uttam Neelabai Beerappa
(Df-1) (Df-2) (Df-3)
Lata (Pf-4) Sidram (Df-4)
Dattatrya Surekha Kumar Navanath
(Pf-1) (Pf-2) (Pf-3)
12. It is not in dispute that the schedule properties are
the joint family properties of plaintiffs and defendants and
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the core question to be answered in this appeal is whether
the Sale Deed executed by defendant No.1 in favour of
defendant No.2 and 4 in respect of the schedule properties
is for legal necessity?
13. In this regard, on careful examination of the finding
recorded by the Courts below would indicate that the
defendant No.1 has sold the schedule properties as per
registered Sale Deed dated 09.02.1996 (Ex.P14) and
registered Sale Deed dated 23.02.1996 (Ex.P15)
respectively and during the said period the defendant No.1
has repaid the loan availed by him from Primary
Agricultural Produce Society at Shiradon Village, Indi Taluk
on 01.12.1995. The said repayment of loan was made
just before two months from the sale of the property in
question. If at all the defendant No.1 is having financial
crunch due to medical treatment, he would not have
cleared the loan from the aforementioned Society. It is
also the finding recorded by the courts below that the
defendant No.1 was financially sound and there was no
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necessity for the family to sell the suit schedule properties
and in view of the evidence adduced by plaintiff-P.W1 with
the documents marked to establish the fact that the
defendant No.1 has not sold the schedule properties for
legal necessity. It is to be borne in mind that the
defendant No.1 was not examined by the contesting
defendants/appellants herein to elicit that the sale was
made for family purpose. Both the courts below having
taken note of the factual aspects on record, have rightly
come to the conclusion that the plaintiffs are entitled for
the relief in the suit. That apart, the First Appellate Court
re-appreciated the evidence on record, particularly,
paragraphs 24 to 27 of the impugned Judgment and
Decree and both the Courts below concurrently held that
the appellants herein have not made out a case for
interference.
14. In the result, the appellants have failed to establish
that there is illegality and perversity in the Judgment and
Decree passed by the courts below and that apart, the
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substantial question of law framed above, favours the
plaintiffs. Hence, there is no merit in the appeal
accordingly, the Regular Second Appeal is dismissed.
Sd/-
JUDGE
SB
