Karnataka High Court
Madhukar S/O Ganpathrao Jhange vs Govind S/O Rajaram Chincholi Ors on 14 February, 2024
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NC: 2024:KHC-K:1512
RSA No. 7288 of 2011
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 14TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 7288 OF 2011 (DEC)
BETWEEN:
MADHUKAR S/O GANPATHRAO JHANGE,
Age : 46 years, OCC: AGRICULTURE,
R/O DEVAERGAON VILLAGE,
TQ: BHALKI, DIST: BIDAR - 585 328.
...APPELLANT
(BY SRI. AJAYKUMAR A.K., ADVOCATE)
AND:
1. GOVIND S/O RAJARAM CHINCHOLI,
AGE : 23 YEARS, OCC: AGRICULTURE,
R/O DEVARGAON VILLAGE,
TQ: BHALKI, DIST: BIDAR - 585 328.
Digitally signed
by SACHIN
Location:
HIGH COURT
2. ANJANNA D/O RAJARAM CHINCHOLI,
OF
KARNATAKA AGE : 27 YEARS, OCC: HOUSEHOLD & AGRI,
R/O SASTAPUR VILLAGE,
TQ: BASAVAKALYAN,
DIST: BIDAR - 585 328.
3. RASJARAM S/O MARAHARI CHINCHOLI,
AGE : 60 YEARS, OCC: AGRICULTAURE,
R/O DEVARGAON VILLAGE,
TQ: BHALKI, DIST: BIDAR - 585 328.
4. LAXMI BAI W/O RAJARAM CHINCHOLI,
AGE : 56 YEARS, OCC: HOUSEHOLD & AGRI,
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NC: 2024:KHC-K:1512
RSA No. 7288 of 2011
R/O DEVARGAON VILLAGE,
TQ: BHALKI, DIST: BIDAR - 585 328.
5. DATTATRAY S/O RAJARAM CHINCHOLI,
AGE : 31 YEARS, OCC: AGRICULTURE,
R/O DEVARGAON VILLAGE,
TQ: BHALKI, DIST: BIDAR - 585 328.
...RESPONDENTS
(BY SRI. K M GHATE, ADVOCATE FOR R1 AND R2;
R3 TO R5 - SERVED, UNREPRESENTED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
30.06.2011 PASSED IN R.A.NO.105/2009 BY THE FAST TRACK
COURT - II, BIDAR (CAMP AT BHALKI) AND CONFIRMED THE
JUDGMENT AND DECREE DATED 15.09.2008 PASSED IN
O.S.NO.99/2006 BY THE COURT OF CIVIL JUDGE (SR.DN.),
BHALKI AND DISMISS THE SUIT FILED BY THE PLAINTIFFS
WITH COST THROUGHOUT IN THE INTEREST OF JUSTICE.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal, Appellant/defendant No.4 is assailing
the judgment and decree dated 30.06.2011 in
R.A.No.105/2009 on the file of Fast Track-II, Bidar (Camp
at Bhalki), allowing the appeal and setting aside the
judgment and decree dated 15.09.2008 in
O.S.No.99/2006 on the file of Civil Judge (Sr.Dn.) at
Bhalki, dismissing the suit of the plaintiffs.
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2. For the sake of convenience, the parties in the
appeal shall be referred to in terms of their status and
ranking before the Trial Court.
3. It is the case of the plaintiffs that, plaintiffs and
defendant No.3 are the children of defendant Nos.1 and 2.
The subject matter of the suit is the ancestral property of
the plaintiffs and therefore, the plaintiffs have filed suit in
O.S.No.99/2006 seeking relief of declaration with
consequential relief that the sale-deed dated 11.06.2001
executed by defendant No.1 in favour of defendant No.4 is
void and not binding on the plaintiffs.
4. After service of notice, the defendants were
served and defendant No.1 remained absent and placed
exparte. Defendant Nos.2 and 3 have filed written
statement, supporting the contention of the plaintiffs.
Defendant No.4, purchaser of the schedule property from
defendant No.1 as per registered sale-deed dated
11.06.2001, contended that defendant No.1 was kartha of
the joint family and as such sold the schedule property for
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family necessity and accordingly sought for dismissal of
the suit.
5. The trial Court on the basis of the pleadings
framed the issues for its consideration.
6. In order to establish their case, plaintiffs have
examined three witnesses as PW.1 to PW.3 and marked
four documents as Ex.P.1 to Ex.P.4. Defendant No.4 was
examined as DW.1 and marked five documents as Ex.D1
to Ex.D5.
7. The Trial Court after considering the material on
record, vide judgment and decree dated 15.09.2008,
dismissed the suit of the plaintiffs. Being aggrieved by the
same, the plaintiffs have preferred appeal in
R.A.No.105/2009 before the First Appellate Court and the
appeal was resisted by the defendants. The First Appellate
Court after considering the material on record, allowed the
appeal on 30.06.2011 and set aside the judgment and
decree passed by the Trial Court in O.S.No.99/2006.
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Feeling aggrieved by the same, the defendant
No.4/appellant has preferred the present second appeal.
8. This Court by order dated 30.10.2012,
formulated the following substantial question of law :-
"When the suit of respondents no.1 and 2
filed for the relief of declaration of the joint
ownership and permanent injunction was
dismissed by the trial court, whether the first
appellate court was justified in granting a decree
in favour of respondents no.1 and 2 and while
doing so, appreciated the evidence in a
capricious and perverse manner ?"
9. I have heard the learned counsel Sri Ajaykumar
A.K., appearing for the appellant and Sri K.M.Ghate,
learned counsel appearing for the respondents.
10. Sri Ajaykumar A.K, learned counsel appearing
for the appellant contended that the re-appreciation of the
evidence by the First Appellate Court is contrary to law as
the finding recorded by the First Appellate Court that
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defendant No.4 has to prove that there is legal necessity
for defendant No.1 to sell the suit schedule property and
therefore he contended that the First Appellate Court has
committed an error in understanding the factual aspects
on record taking into consideration the provision contained
under Section 101 of Evidence Act. Accordingly, he sought
for interference of this Court.
11. Per contra, Sri K.M.Ghate, learned counsel
appearing for respondent Nos.1 and 2 sought to justify the
impugned judgment and decree passed by the First
Appellate Court. It is the specific argument of the learned
counsel appearing for the respondents that in view of
placing defendant No.1 ex-parte, it is the duty of
defendant No.4 to substantiate before the Court that the
suit schedule property has been sold for family necessity.
In this regard, he refers to the finding recorded by the
First Appellate Court at paragraph 18 and argued that the
defendant No.4 ought to have taken steps to summon
defendant No.1 to the witness box to depose about the
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acquisition of land during the year 1977 and selling the
property in question during the year 2001 and accordingly
sought for interference of this Court.
12. Having heard the learned counsel appearing for
the parties, I have carefully examined the finding recorded
by both the Courts below and perused the original records.
13. It is not in dispute with regard to the
relationship between the parties as the plaintiffs and
defendant No.3 are the children of defendant Nos.1 and 2.
The grievance of the plaintiffs that suit schedule property
being the joint family property has been sold by defendant
No.1 in favour of defendant No.4 without any cause and
not for the benefit of joint family. In the light of these
aspects and on careful examination of the recital in the
sale-deed dated 29.06.1977 (Ex.D1) where the defendant
No.1 has purchased suit schedule property from one
Narsawwa for sale consideration of `10,000/-. Perusal of
the recitals in Ex.D1 reveals that, nothing is stated about
the contribution made by the members of the joint family
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and it may be safely concluded that the schedule property,
being purchased by defendant No.1 from Narsawwa as per
Ex.D1 is the self acquired property of defendant No.1.
Therefore, the finding recorded by the First Appellate
Court is not correct as it concluded that the schedule
property is the joint family property of plaintiffs.
14. I have also noticed that the recitals in Ex.D2-
sale-deed dated 11.06.2001 whereby the defendant No.1
sold the schedule property in favour of defendant No.4. In
the said sale-deed, it is stated in unequivocal words that
defendant No.1 was in need of money to discharge his
legal debts incurred by him and for family and legal
necessity. In that view of the matter, the finding recorded
by the First Appellate Court that it is the duty of defendant
No.4 to prove that there was legal necessity for defendant
No.1 to sell the suit schedule property in favour of
defendant No.4 is incorrect and the First Appellate Court
has not properly re-appreciated the evidence on record in
terms of Order XLI Rule 31 of Code of Civil Procedure as
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well as the declaration of law made by the Hon'ble
Supreme Court in the case of Santosh Hazari vs.
Purushottam Tiwari (deceased) by LRs.1. In that view
of the matter, I am of the view that the judgment and
decree passed by the First Appellate Court requires to be
set-aside and the substantial question of law referred to
above favours defendant No.4. In the result, I pass the
following order :
(i) Appeal is allowed.
(ii) Judgment and decree dated 30.06.2011 in
R.A.No.105/2009 on the file of Fast Track-II
Bidar (Camp at Bhalki) is set-aside.
(iii) Judgment and decree dated 15.09.2008 in
O.S.No.99/2006 on the file of Civil Judge
(Sr.Dn.), Bhalki is hereby confirmed and
suit of the plaintiffs is dismissed.
Sd/-
JUDGE
SN
(2001) 3 SCC 179
