Karnataka High Court
Sadashiv S/O Babu Dhage And Anr vs Mahadeva S/O Pandurang Dhage And Ors on 13 February, 2024
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RSA NO.200104 OF 2017
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
REGULAR SECOND APPEAL NO.200104 OF 2017 (PAR)
BETWEEN:
1. SADASHIV
S/O BABU DHAGE
AGE: 68 YEARS,
OCC: AGRICULTURE,
R/O DYABERI, VIJAYAPUR TALUK,
VIJAYAPUR DISTRICT - 586 101.
2. RAJARAM
S/O SADASHIV DHAGE,
AGE: 46 YEARS,
OCC: AGRICULTURE,
R/O DYABERI, VIJAYAPUR TALUK,
VIJAYAPUR DISTRICT - 586 101.
...APPELLANTS
(BY SRI. MANVENDRA REDDY, AND SRI. NARENDRA M. REDDY,
ADVOCATES)
Digitally signed
by SACHIN
Location: HIGH AND:
COURT OF
KARNATAKA
1. MAHADEVA
S/O PANDURANG DHAGE
AGE: 36 YEARS,
OCC: AGRICULTURE,
R/O DYABERI, VIJAYAPUR TALUK,
VIJAYAPUR DISTRICT - 586 101.
2. MARUTI
S/O PANDURANG DHAGE
AGE: 33 YEARS,
OCC: AGRICULTURE,
R/O DYABERI, VIJAYAPUR TALUK,
VIJAYAPUR DISTRICT - 586 101.
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RSA NO.200104 OF 2017
3. MACHCHENDRA
S/O PANDURANG DHAGE
AGE: 29 YEARS,
OCC: AGRICULTURE,
R/O DYABERI, VIJAYAPUR TALUK,
VIJAYAPUR DISTRICT - 586 101.
4. SUVARNA
W/O SOPANNAKHOT
AGE: 33 YEARS,
OCC: HOUSEHOLD WORK,
R/O KATNALLI, ATHANI,
BELGAUM DISTRICT - 591 304.
5. PANDURANG
S/O BABU DHAGE
AGE: 63 YEARS,
OCC: AGRICULTURE,
R/O DYABERI, VIJAYAPUR TALUK,
VIJAYAPUR DISTRICT - 586 101.
...RESPONDENTS
(BY SRI. BAPUGOUDA SIDDAPPA, ADVOCATE FOR C/R1 TO R4;
NOTICE TO R5 SERVED BUT, UN-REPRESENTED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CIVIL PROCEDURE CODE AGAINST THE
JUDGEMENT AND DECREE DATED 09TH FEBRUARY, 2017
PASSED IN REGULAR APPEAL NO.19 OF 2012 ON THE FILE OF
THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, VIJAYAPUR,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 24TH MARCH, 2012 PASSED IN ORIGINAL
SUIT NO.329 OF 2008 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE, VIJAYAPUR.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA NO.200104 OF 2017
JUDGMENT
This appeal is filed by defendants 2 and 3 challenging
the judgment and decree dated 09th February, 2017 passed
in Regular Appeal No.19 of 2012 on the file of the I
Additional Senior Civil Judge and CJM, Vijayapur (for short,
hereinafter referred to a 'First Appellate Court'), confirming
the judgment and decree dated 24th March, 2012 passed in
Original Suit No.329 of 2008 on the file of the Principal
Civil Judge, Vijayapur, (for short, hereinafter referred to as
'Trial Court'), decreeing the suit of the plaintiffs, holding
that the defendant No.3 is entitled for one-fifth share in
the suit schedule property.
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 the
appellant/plaintiffs are the children of the defendant No.1.
The land bearing Survey No.252/1B measuring to an
extent of 4 acres situate at Dyaberi Village, Vijayapur Taluk
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RSA NO.200104 OF 2017
is the ancestral property of the plaintiffs and the defendant
No.1. The defendant No.1 has sold the schedule property
in favour of defendants 2 and 3 against the interest of the
plaintiffs. hence, the plaintiffs filed Original Suit N.329 of
2008, seeking partition and separate possession in respect
of suit schedule property.
4. After service of summons, defendant No.1 entered
appearance, however has not contested the suit.
Defendants 2 and 3 filed written statement alleging that
the defendant No.1 sold the property in favour of the
defendant No.2 for the legal necessities of their family as
per the registered Sale Deed dated 06th July, 2004 and
therefore, the defendants 2 and 3 being a bonafide
purchasers of the suit property, have 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 6 documents as Exhibits
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P1 to P6. On the other hand, defendants examined 3
Witnesses as DW1 to DW3 and got marked 18 documents
as Exhibits D1 to D18.
7. The Trial Court, after considering the material on
record, by its judgment and decree dated 24th March,
2012, decreed the suit of the plaintiffs. Being aggrieved by
the same, the defendants 2 and 3 have preferred Regular
Appeal No. 19 of 2012 on the file of First Appellate Court
and 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 09th February, 2017,
dismissed the appeal and confirmed the judgment and
decree dated 24th March, 2012 passed by the Trial Court in
Original Suit No.329 of 2008. Being aggrieved by the
same, the appellant/defendants 2 and 3 have preferred
this Regular Second Appeal under Section 100 of the Code
of Civil Procedure.
8. This Court, by order dated 06th March, 2018
framed the following substantial question of law:
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"01. Were the Courts below justified in decreeing the
suit of the plaintiffs, granting 4/5th share in the
suit land and granting 1/5th share to the
defendant No.3 in the suit property, when the
suit for partial partition is not maintainable as
the plaintiff has not included the land
Sy.No.190/1A and 191/4 which are also joint
family properties?
02. Were the Courts below are justified in decreeing
the suit of the plaintiffs granting 4/5th share in
favour of the plaintiffs and 1/5th share in favour
of the defendant No.3 in the facts and
circumstances of the present appeal?"
9. Heard Sri. Manavendra Reddy and Sri. Narendra
M. Reddy, learned counsel appearing for the
appellant/defendants 2 and 3 and Sri. Bapugouda
Siddappa, learned counsel appearing for respondents 1 to
4.
10. Sri. Manavendra Reddy, learned counsel for the
appellant/defendants 2 and 3 contended that the reasons
assigned by both the Courts below is contrary to records as
the plaintiff No.1 himself is the consenting witness to the
Sale Deed said to have been executed by the defendant
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No.1 in favour of defendants 2 and 3. He further
contended that the plaintiffs have failed to establish that
the land in question has been sold for legal and family
necessity by the defendant No.1. It is also contended by
the learned counsel appearing for appellants that the suit
of the plaintiffs is a collusive suit, as all the joint family
properties have not been included in the suit and
accordingly, sought for interference of this Court.
11. Per contra, Sri. Bapugouda Siddappa, learned
counsel appearing for the respondent 1 to 4 argued that
the plaintiffs have established before the Courts below that
the signature in the Sale Deed is not belonging to plaintiff
No.1 and accordingly, sought for dismissal of the appeal.
12. On careful perusal of the of the original records
and the contention raised by learned counsel appearing for
the parties, there is no dispute with regard to relationship
between the plaintiffs and the defendant No.1. The
genealogical tree is produced as under:
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Pandurang
(Defendant No.1)
Mahadeva Maruti Machchendra Suvarna
(Plaintiff No.1) (Plaintiff No.2) (Plaintiff No.3) (Plaintiff No.4)
13. Perusal of the original records would indicate that
the defendant No.1 is the father of plaintiffs. The only
question to be answered here is whether the registered
Sale Deed dated 06th July, 2004 (Exhibt-D1) has been
made by the defendant No.1 in favour of defendants 2 and
3 suffers from family and legal necessities of the joint
family of plaintiffs and defendant No.1. Since, the
contentions raised by learned counsel appearing for the
appellant/defendants 2 and 3 that the plaintiff No.1 was a
consenting witness to the Exhibit D1, this Court verified the
signature of the plaintiff No.1 in the plaint, Vakalatnama in
the appeal and in the evidence on record filed by the
plaintiff No.1 as PW1. Judicial notice has been made that
signature of the plaintiff No.1 is different as that of the
signature on the registered Sale Deed (Exhibit D1). It is
also to be noted that, it is the contention of the contesting
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defendants that, some of the properties of the joint family
have not been incorporated in the plaint, however, the said
submission cannot be accepted on the sole ground that the
defendant No.1 has not raised such plea by filing written
statement as defendant No.1, has not contested the
matter. That apart, as the plaintiffs have established
before the Trial Court that the suit schedule property has
been sold in favour of defendants 2 and 3 without the legal
and family necessity and that apart, the perusal of the Sale
Deed at Exhibit D1 would indicate that, such necessity has
not been forthcoming in the recitals of the Sale Deed, I am
of the view that the finding recorded by both the Courts
below is just and proper. Accordingly, substantial question
of law referred to above favours the plaintiffs. Hence, the
Regular Second appeal is dismissed as devoid of merits.
Sd/-
JUDGE
ARK
