Karnataka High Court
Sri Gopal Pundalik Rao Patil And Ors vs Sri Pundalik Rao Patil S/O Hanmanthgrao ... on 4 January, 2024
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RSA No. 7030 of 2013
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 7030 OF 2013 (PAR-)
BETWEEN:
1. SRI GOPAL PUNDALIK RAO PATIL,
AGED ABOUT 42 YEARS,
OCC: AGRICULTURE & BUSINESS,
R/O GUTTI VILLAGE, TQ. BASAVAKALYAN,
DIST. BIDAR-585401.
2. SRI. MADHAV PUINDALIK RAO PATIL,
AGED ABOUT 38 YEARS,
OCC: AGRICULTURE,
R/O GUTTI VILLAGE, TQ. BASAVAKALYAN,
DIST. BIDAR-585401.
3. SMT. MEENABAI D/O PUNDALIK RAO PATIL,
AGED ABOUT 34 YEARS, OCC: AGRICULTURE,
Digitally signed
by SACHIN R/O GUTTI VILLAGE, TQ. BASAVAKALYAN,
Location:
HIGH COURT
OF
DIST. BIDAR-585401.
KARNATAKA
4. SRI. DATTATRI S/O PUNDALIK RAO PATIL,
AGED ABOUT 32 YEARS, OCC: AGRICULTURE,
R/O GUTTI VILLAGE, TQ. BASAVAKALYAN,
DIST. BIDAR-585401.
5. SMT. CHAYABAI D/O PUNDALIK RAO PATIL,
AGED ABOUT 28 YEARS,
OCC: AGRICULTURE & HOUSEHOLD,
R/O GUTTI VILLAGE, TQ. BASAVAKALYAN,
DIST. BIDAR-585401.
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RSA No. 7030 of 2013
6. SMT. KALAWATI W/O PUNDALIK RAO PATIL,
AGED ABOUT 71 YEARS,
OCC: AGRICULTURE & HOUSEHOLD,
R/O GUTTI VILLAGE, TQ. BASAVAKALYAN,
DIST. BIDAR-585401.
...APPELLANTS
(BY SRI. RAVI B.PATIL, ADVOCATE)
AND:
1. SRI PUNDALIK RAO PATIL
S/O HANMANTHGRAO ,
AGED ABOUT 75 YEARS,
OCC: AGRICULTURE,
R/O GUTTI VILLAGE,
TQ. BASAVAKALYAN,
DIST. BIDAR-585401.
2. SMT. KASTURBAI W/O RAMKRISHNA SOLUNKE,
AGED ABOUT 51 YEARS,
OCC: HOUSEHOLD,
R/O GUTTI VILLAGE, TQ. BASAVAKALYAN,
DIST. BIDAR-585401.
...RESPONDENTS
(BY SRI. SACHIN M.MAHAJAN, ADVOCATE FOR R2;
NOTICE TO R1-SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF CODE OF
CIVIL PROCEDURE, PRAYING TO ALLOW THE ABOVE SECOND
APPEAL AND SET ASIDE THE JUDGMENT AND DECREE IN
R.A.4/2012 PASSED BY THE COURT OF SENIOR CIVIL JUDGE,
BASAVAKALYAN AND THEREBY SET ASIDE THE JUDGMENT AND
DECREE IN O.S.NO.88/2006 TO THE EXTENT OF THE RELIEF OF
DECLARATION AND CONSEQUENTIAL DECREE THE SUIT OF
THE PLAINTIFFS IN ENTIRETY.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RSA No. 7030 of 2013
JUDGMENT
1. This appeal is filed by plaintiff/appellants
challenging the judgment and decree dated 12.10.2012
passed in RA.No.14/2012 on the file of the Senior Civil
Judge, Basavakalyan, dismissing the appeal and
confirming the judgment and decree dated 17.03.2012
passed in OS.No.88 of 2006 on the file of the Civil
Judge, Basavakalyan, decreeing the suit of the plaintiffs
except in respect of the property bearing Sy.No.44/1,
measuring 2 acres, 39 guntas of Gutti village,
Basavakalyana Taluk.
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 plaintiffs 1 to 5
are the children of plaintiff No.6 and defendant No.1.
Defendant No.2 is the purchaser of the land bearing
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Sy.No. 44/1, measuring 2 acres, 39 guntas of Gutti
village from the defendant No.1. It is the case of the
plaintiffs that suit schedule property is the ancestral
property of the plaintiffs and defendant No.1. It is
further stated that, the defendant No.1 was addicted to
bad vices and as such, sold Item No.1 of 'A' suit
schedule property in favour of defendant No.2 and
feeling aggrieved by the same, the plaintiffs have filed
OS No. 88 of 2006 on the file of the Trial Court seeking
relief of partition and separate possession in respect of
the suit schedule property.
4. After service of summons, defendant No.1 was
absent and placed ex-parte. Defendant No.2 entered
appearance and filed detailed written statement denying
the averments made in the plaint, however, took up a
specific contention that Item No.1 of the schedule 'A'
property was purchased through registered Sale Deeds
and therefore, contended that the defendant No.1 being
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the kartha of the family, and defendant No.1 raised
debts and as such, he sold the property for repayment
of loans. Therefore, 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, plaintiffs examined
five witnesses as PW1 to PW5 and got marked 20
documents as Exs.P1 to P20. On the other hand,
defendants examined four witnesses as DW1 to DW4
and produced 25 documents as Exs.D1 to D25.
7. The trial Court, after considering the material on
record, by its judgment and decree dated 17.03.2012,
decreed the suit of the plaintiffs in part holding that, the
plaintiffs are entitled for share in the suit schedule
property except Item No.1 of the Schedule 'A' property
namely, land bearing Sy.No.44/1, measuring 2 acres, 39
guntas of Gutti Village and being aggrieved by the
same, the plaintiffs have preferred Regular Appeal in
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RA.No.14 of 2012 on the file of First Appellate Court and
the said appeal was resisted by the defendant No.2. The
First Appellate Court after re-appreciating the facts on
record, by its judgment and decree dated 12.10.2012
dismissed the appeal and confirmed the judgment and
decree passed by the trial Court in OS.No.88 of 2006.
Being aggrieved by the dismissal of R.A.No 14 of 2012,
the plaintiff/ appellants have preferred this Regular
Second Appeal under Section 100 of CPC.
8. This Court by order dated 13.06.2013 framed the
following substantial question of law.
i) Whether the Trial Court was justified in accepting
the Agreement of Sale Ex.D.25 as containing the
signatures of the plaintiffs which were denied,
though admittedly plaintiff were not signatories to
the sale deeds five numbers executed by the 1st
defendant in favour of 2nd defendant conveying 2
acres 39 guntas in Sy.No.44/1 ?
ii) Whether the Trial Court was justified in recording a
finding that the conveyance was for family
necessity, though plaintiffs being majors on the
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date of execution of five sale deeds by the 1st
defendant in favour of the defendant No.2
conveying the aforesaid immovable property ?
iii) Whether the Trial Court was justified in accepting
that the sale consideration was Rs.80,000/- put
together in five sale deeds executed by the 1st
defendant in favour of the 2nd defendant conveying
the aforesaid immovable property though the
Agreement of Sale Ex.D.25 disclosed the sale
consideration as Rs. 1,28,500/- ?
iv) Whether the dismissal of the appeal by the lower
Appellate Court without re-appreciating the
evidence both oral and documentary has occasioned
denial of justice, as contended by the appellants ?
9. I have heard Sri Ravi B. Patil, learned counsel
appearing for the appellant and Sri Sachin M. Mahajan,
learned counsel appearing for the respondent No.2.
10. Sri Ravi B. Patil, learned counsel for the
plaintiff/appellants submits that finding recorded by the
both the courts below in respect of Item No.1 of
Schedule 'A' property is incorrect as the defendant No.1
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has sold the property in question in favour of defendant
No.2 without any valid reasons and there is no legal
necessity for the defendant No.1 to sell the property in
question in favour of defendant No.2 and accordingly,
sought for interference of this Court.
11. Sri Sachin M. Mahajan, learned counsel for the
respondent No.2 refers to the recitals in the sale deeds
said to have been executed by the defendant No.1 in
favour of the defendant No.2 and submitted that, the
plaintiffs have failed to establish that defendant No.1
has sold the property in question in favour of defendant
No.2 for any other reasons other than the legal
necessity and therefore, sought for dismissal of the
appeal.
12. Heard the learned counsel appearing for both the
parties and perused the material on records. On careful
perusal of the record would indicate that, plaintiff Nos.1
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to 5 are the children of defendant No.1 and plaintiff No.6
and the core question to be answered in this appeal is
with regard to the sale deeds executed by defendant
No.1 in favour of the defendant No.2 in respect of the
Item No.1 of the schedule 'A' property is in accordance
with law or not. On careful examination of the evidence
of the PW1, would indicate that, the defendant No.1 has
incurred expenses to perform the marriage of his
daughters namely, plaintiffs 3 and 5 and further by
looking into the recitals in the sale deeds, mentioned at
paragraph 10 of the judgment and decree passed by the
Trial Court would indicate that, the plaintiffs were aware
about the execution of registered Sale Deeds and the
recitals in the registered Sale Deeds vide Ex.D1 would
indicate that, the defendant No.1 has sold the Item No.1
of the Schedule 'A' of the property for family and legal
necessity and therefore, the finding recorded by both
the courts below is just and proper and accordingly, as
the plaintiffs failed to establish that the property in
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question is sold by defendant No.1 in favour of
defendant No.2 for any other illegal means except for
the legal necessity of family of the plaintiffs and
defendant No.1, I am of the opinion that, plaintiffs have
failed to establish the contentions raised in the appeal
and accordingly, the substantial question of law framed
above favors the No.2. In the result, the Regular Second
Appeal is rejected.
Sd/-
JUDGE
SB
