Karnataka High Court
Prabhakar S/O Narayan Desai And Ors vs Giridhar S/O Krishanji Desai on 4 January, 2024
-1-
NC: 2024:KHC-K:111
RSA No. 200131 of 2023
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.200131 OF 2023
(PAR/POS)
BETWEEN:
1. PRABHAKAR S/O NARAYAN DESAI,
AGE: 70 YEARS, OCC: RTD.,
R/O MANNUR, TQ. B.BAGEWADI,
DIST. VIJAYAPURA-586 101.
2. RAGHAVENDRA S/O NARAYAN DESAI,
AGE: 67 YEARS, OCC: AGRI.,
R/O MANNUR, TQ. B.BAGEWADI,
DIST. VIJAYAPURA-586 101.
3. MADHAV S/O NARAYAN DESAI,
AGE: 62 YEARS, OCC: SERVICE,
Digitally signed R/O PADAMANABHA NAGAR,
by SACHIN
Location: HIGH
BANGALORE-01.
COURT OF
KARNATAKA
4. SURESH S/O NARAYAN DESAI,
AGE: 56 YEARS, OCC: PRIVATE SERVICE,
R/O MAHALAXMI LAYOUT,
BANGALORE-01.
5. NARSINGH @ NARASIMHA
S/O NARAYAN DESAI,
AGE: 54 YEARS, OCC: PRIVATE SERVICE,
R/O NANDINI LAYOUT,
BANGALORE-01.
-2-
NC: 2024:KHC-K:111
RSA No. 200131 of 2023
6. SHOBHA S/O LAXMAN KULKARNI,
SINCE DECEASED BY HIS LR'S.
6(A) SRINIVAS S/O LAXMAN KULKARNI,
AGE: 37 YEARS, OCC: PRIVATE SERVICE,
R/O LAXMI NAGAR, PUNE-411 009.
6(B) SONUBAI @ PUTTI W/O MARSHIMMA DESAI,
AGE: 41 YEARS, OCC: HOUSEHOLD,
R/O NANDINI LAYOUT, BANGALORE-01.
...APPELLANTS
(BY SRI. SANGANABASAVA B. PATIL, ADVOCATE)
AND:
GIRIDHAR S/O KRISHNAJI DESAI,
AGE: 81 YEARS, OCC: RETIRED,
R/O MANNUR, TQ. B.BAGEWADI,
DIST. VIJAYAPURA-586 101.
...RESPONDENT
(BY SRI. MAHADEV S. PATIL, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 28.09.2022
PASSED IN R.A. NO.170/2019 ON THE FILE OF THE I ADDL.
DISTRICT AND SESSIONS JUDGE, VIJAYAPURA, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 27.08.2019 PASSED IN O.S. NO.242/2011 ON THE FILE
OF THE SENIOR CIVIL JUDGE, BASAVANA BAGEWADI.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
-3-
NC: 2024:KHC-K:111
RSA No. 200131 of 2023
JUDGMENT
This appeal is preferred by the
defendants/appellants, challenging the judgment and
decree dated 28.09.2022 in R.A. No.170/2019 on the file
of I Addl. District Judge, Vijaypura (for short 'First
Appellate Court'), confirming the judgment and decree
dated 27.08.2019 in O.S. No.242/2011 on the file of
Senior Civil Judge and JMFC, Basavana Bagewadi (for
short 'Trial Court'), decreeing the suit of the plaintiff,
holding that the plaintiff is entitled for half share in the
suit schedule property.
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 plaintiff that, the original
propositus - Giridhar (grand father of the plaintiff) had
four sons namely, Venkatesh, Krishnaji, Ramchandra and
Narayanarao. Plaintiff is the son of Krishnaji, the second
son of Giridhar. It is the case of the plaintiff that, a joint
NC: 2024:KHC-K:111
family partition was took place in the life time of grand
father of the plaintiff and an extent of 4 acres 14 guntas in
Sy. No.118/1 was allotted to the share of Krishnaji (father
of plaintiff) and Narayanarao (father of defendants). It is
the case of the plaintiff that, the defendants have obtained
the signature of the plaintiff on a blank paper to effect the
division of property and based on the same, mutated their
names in the revenue records and being aggrieved by the
same, the plaintiff has filed a suit in O.S. No.242/2011
before the Trial Court, seeking relief of partition and
separate possession.
4. On service of notice, defendant No.2 entered
appearance and filed detailed written statement alleging
that the plaintiff has no share in the property in view of
the partition took place on 02.11.2001 between the family
of the plaintiff and defendants.
5. Based on the pleadings on record, the Trial
Court framed the issues for its consideration.
NC: 2024:KHC-K:111
6. In order to substantiate their case, plaintiff has
examined himself as PW.1 and got marked 14 documents
as Exs.P1 to P14. The defendants have examined 3
witnesses as DW.1 to DW3 and got marked 4 documents
as Exs.D1 to D4.
7. The Trial Court after considering the material on
record, by its judgment and decree dated 27.08.2019,
decreed the suit of the plaintiff, holding that the plaintiff is
entitled for half share in the suit schedule property.
Feeling aggrieved by the same, the defendants have filed
R.A. No.170/2019 before the First Appellate Court and the
appeal was resisted by the plaintiff.
8. The First Appellate Court after re-appreciating
the material on record, by its judgment and decree dated
28.09.2022, dismissed the appeal. Feeling aggrieved by
the same, the defendants have filed this Regular Second
Appeal.
9. Heard Sri Sanganabasava B. Patil, learned
counsel appearing for the appellants and Sri Mahadev S.
NC: 2024:KHC-K:111
Patil, learned counsel appearing for the
caveator/respondent.
10. Sri Sanganabasava B. Patil, learned counsel
appearing for the appellants contended that both the
Courts below have failed to appreciate Ex.D2 produced by
the defendants to establish that the plaintiff has
relinquished his half share in the suit schedule property in
favour of the defendants and accordingly, sought for
interference of this Court.
11. Per contra, Sri Mahadev S. Patil, learned
counsel appearing for the caveator/respondent sought to
justify the impugned judgment and decree.
12. Having heard the learned counsel appearing for
the parties, the core question to be answered in this
appeal is, whether the defendants have made out a case
for dismissing the suit of the plaintiff on the ground that
the plaintiff has relinquished his right in respect of the
subject matter of the suit?
NC: 2024:KHC-K:111
13. It is not in dispute with regard to the
relationship between the parties. It is the case of the
defendants that, by virtue of partition deed/relinquish
deed dated 02.11.2001, plaintiff has relinquished his rights
in respect of half share of the schedule property.
Undisputably, the relinquish deed dated 02.11.2001 relied
upon by the defendants is unregistered deed and the
property to be conveyed is the immovable property and
therefore, the said deed even according to the defendants
is executed by the plaintiff, but the said document
produced at Ex.D2 is not a registered deed and therefore,
in view of the declaration of law made by the Hon'ble Apex
Court in the case of Yellapu Uma Maheswari and
Another vs. Buddha Jagadheeswararao and Others
reported in (2015) 16 SCC 787, I am of the view that,
unless the relinquish deed is registered under the
provisions of the Registration Act, the said document
cannot be accepted insofar as transfer of property is
concerned and therefore, both the Courts below have
rightly come to the conclusion that the plaintiff has made
NC: 2024:KHC-K:111
out a case for having half share in the suit schedule
property. In that view of the matter, I am of the view that,
the appellants have not made out a case for framing
substantial question of law as required under Section 100
of the Code of Civil Procedure.
Accordingly, the appeal fails and is dismissed.
In view of dismissal of the appeal, I.A.1/2022 for
stay does not survive for consideration and is accordingly
dismissed.
Sd/-
JUDGE
LG
