Karnataka High Court
Sangeeth Raj N vs Cheluvaraj Since Dead Represented By ... on 10 January, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 1524 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 1524 OF 2022 (PAR/DEC)
BETWEEN:
1 . SANGEETH RAJ N.,
S/O LATE M. NAGARAJ
AGED ABOUT 37 YEARS
2 . SMT. SHAMALA
S/O LATE M. NAGARAJ
AGED ABOUT 35 YEARS
3 . SRI SOMASHEKAR
S/O LATE M NAGARAJ
AGED ABOUT 32 YEARS
ALL ARE R/AT NO.7
LALBAG SIDDAPURA, J C COLONY
JAYANAGAR, 1ST BLOCK
BANGALORE - 560 011.
Digitally
signed by
SUMA B N ...APPELLANTS
Location: (BY SRI. T PRAKASH.,ADVOCATE)
High Court
of Karnataka
AND:
CHELUVARAJ SINCE DEAD
REPRESENTED BY HIS LEGAL HEIRS
1. C. ARUN KUMAR
S/O LATE CHELUVARAJU
AGED ABOUT 34 YEARS
2. C. SUMA
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RSA No. 1524 of 2022
D/O LATE CHELUVARAJU
AGED ABOUT 32 YEARS
R/AT NO.2585, BEL COLONY
JALAHALLI POST
BANGALORE - 560 013.
3. SRI Y. PARASHURAM
S/O LATE YELLAPPA
AGED ABOUT 64 YEARS
R/AT No.T4/49, SHAKTHINAGAR
KPTCL QUARTERS
RAICHUR DISTRICT, RAICHUR.
4. SMT. I R BHARATHI ERANNA
W/O ERANNA
AGED ABOUT 76 YEARS
R/AT NO.45, HONGASANDRA
BANGALORE - 560 068.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 26.09.2022 PASSED IN
RA.No.5101/2020 ON THE FILE OF THE III ADDITIONAL DISTRICT
AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, SITTING AT
ANEKAL, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 13.02.2015 PASSED IN OS
No.498/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE, ANEKAL.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the legal heirs of deceased
plaintiff M.Nagraj aggrieved by the judgment and decree
dated 13.02.2015 passed in O.S.No.498/2006 (Old
O.S.No.773/2002) on the file of Senior Civil Judge and
JMFC, Anekal, Bangaluru Rural District (the Trial Court) by
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which the suit of the plaintiffs was dismissed and
confirmed by the Judgment and order dated 26.09.2022
passed in R.A.No.5101/2022 on the file of III Additional
Disitrict and Session Judge, Bengaluru Rural District (the
First Appellate Court).
2. The above suit has been filed by the deceased
plaintiff M.Nagaraj for relief of partition and separate
possession in respect of agricultural land bearing old
Sy.No.30 and new Sy.No.31/1 measuring 2 Acre 38
guntas situated at Gatahally Village, Sarjapura Hobli,
Anekal Taluk, Bangalore District (suit schedule property)
and also for relief for declaration, declaring that the sale
deed dated 11.05.2000 executed by the defendant No.1 in
favour of defendant No.3 is null and void and not binding
on the plaintiffs.
2.1 It is the contentions of the plaintiffs that the
plaintiff and the defendant Nos.1 and 2 are the members
of the Hindu Undivided Joint Family and the suit schedule
property is their ancestral joint family property.
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2.2 That originally suit property was acquired by the
joint family. One Shamanna was the Kartha of the joint
family who had two sons namely Yellappa and
Muniswamy. The suit property was purchased in the name
of Yellappa in terms of deed of sale dated 04.05.1934 from
and out of the joint family funds. Since the date of
purchase said two sons of Shamanna namely Yellappa and
Muniswamy were cultivating the said suit property.
Yellappa and Muniswamy had also raised loan during their
lifetime and they have discharged the said loan out of the
joint family funds and performed the marriage of their
daughters out of the joint family funds. As such Yellappa
and Muniswamy were entitled for equal share in the suit
schedule property. After the death of Yellappa, defendant
Nos.1 and 2 had succeeded to his half share. While after
the demise of Muniswamy, plaintiff had succeeded to his
half share in the suit schedule property. Plaintiff in order
to eke out his livelihood had left the village and was
working as temporary employee at Vishweshwaraiah
Museum and later employed by the State Bank of Mysore
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in the year 1986 and ever since then he is residing in
Bangalore.
2.3 The father of the plaintiff-Muniswamy was blessed
with seven daughters and father of the defendant Nos.1
and 2 Yellappa was blessed with four daughters. All the
daughters are residing in their husband's house and they
have no right over the suit schedule property. During the
life time of mother of the plaintiff by name
Smt.Madhuramma, she had demanded share over the suit
property from the defendant No.1. At that time,
defendant No.1 had executed family arrangement deed
dated 01.01.1990, agreeing to give half share to the
plaintiff. As such she was in possession and enjoyment of
the half share of the suit schedule property. After the
death of Smt. Madhuramma, the defendant No. 1 used to
cultivate the suit property. Taking the advantage of the
absence of the plaintiff in the village, the defendant No.1
alienated the suit property in favour of a defendant No.3 in
terms of deed of sale dated 11-05-2000. The said
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document is not binding upon the share of plaintiff. The
plaintiff demanded his legitimate share in the suit schedule
property which was denied constraining him to file the
suit.
3. After service of summons, the defendants
appeared before the court through their counsel. The
defendants No.1 and 2 did not file written statement. The
defendant No.3 filed his written statement denying the
plaint averments and also denying the claim of plaintiff
being in joint possession of the suit property. It was
contended that the suit property is the self acquired
property of Yellappa S/o Shamanna and he having
acquired the same in terms of deed of sale dated
04.05.1934. Ever since then, Yellappa was in actual
possession and enjoyment of the suit property. That after
the demise of Yellappa, his wife Muniyamma and his
children were in actual possession and enjoyment of the
same. During the life time of Yellappa, his family members
have partitioned the suit schedule property in terms of
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Panchayathi Parikath dated 20-10-1980 in terms of which
the suit property has been allotted to the share of
defendant No.1, who accordingly became the absolute
owner of the suit property and continued to be in the
possession and enjoyment of the same as such.
Thereafter, the defendant No.1 alienated the suit property
in favour of the defendant No.3 in terms of deed of sale
dated 11-05-2000. Ever since then, the defendant No.3
has been in actual possession and enjoyment of the suit
property being the bonafide purchaser. It is further
contended that, the suit of the plaintiff was barred by
limitation. Hence, sought for dismissal of the suit.
4. Based on the pleadings, the Trial Court framed the
following issues for its consideration:
"1. Whether the plaintiff proves that the suit
schedule property is the joint family property of
plaintiff and defendants?
2. Whether the plaintiff proves that himself and
defendants No.1 and 2 were in joint possession
and enjoyment of the schedule property?
3. Whether the plaintiff proves that the sale deed
dated 11-05-2000 executed by the 1st defendant
in favour of the 3r defendant is null and void and
not binding on the plaintiff?
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4. Whether the plaintiff is entitled for partition and
separate possession of half share in the suit
schedule property?
5. Whether the defendant No.3 proves that sons of
late Yellappa have divided the properties belong to
their family under a panchayathi palu parikath
dated 20-10- 1980?
6. Whether the defendant No.3 proves that he is
the bonafide purchaser of the suit schedule
property?
7. For what decree or order?"
5. The plaintiff examined himself as PW1 and
exhibited 17 documents marked as Ex.P1 to Ex.P17. One
Eranna examined himself as DW.1 on behalf of the
defendants and exhibited 51 documents marked as Ex.D1
to Ex.D51. On appreciation of the evidence the Trial Court
answered issue Nos.1 to 4 in the negative and issue Nos.6
and 7 in the affirmative and consequently dismissed the
suit.
6. It appears original plaintiff passed away in the
meanwhile, as such his legal heirs have filed regular
appeal in R.A.No.5101/2020 before the First Appellate
Court. Considering the grounds urged the First Appellate
Court framed the points for its consideration.
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7. On re-appreciation of the evidences, the First
Appellate Court dismissed the appeal confirming the
judgment and decree passed by the Trial Court. Being
aggrieved by the same, legal representative of the
deceased plaintiff have filed the present appeal.
8. Sri.T.Prakash, learned counsel for the appellant
reiterating the grounds urged in the memorandum of the
appeal submits that the Trial Court and the First Appellate
Court have failed to appreciate the fact that the suit
schedule property is the joint family property and same is
confirmed in terms of family settlement deed dated
01.01.1990 executed by defendant No.1 in favour of
Smt.Madhuramma-mother of the plaintiff produced at
Ex.P4. It is his contention that, the said document at Ex.P4
has not been disputed either by defendant No.1 or his
brother defendant No.2. The said document having
remained unchallenged the claim of the plaintiff to an
extent of half of the suit schedule property ought to have
been considered and granted by the Trial Court and the
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First Appellate Court. He further submits that, Ex.P6 is
the complaint filed by the plaintiff before the Tahsildar on
30.11.2000 against change of khata of suit schedule
property in the name of defendant No.1. In that the
plaintiff has specifically claimed his share in the suit
schedule property. That the Trial Court and the First
Appellate Court grossly erred in not appreciating the fact
that deed of sale dated 11.05.2000 at Ex.D6 executed by
defendant No.1 in favour of defendant No.3 was not
binding on the plaintiff to the extent of his half share in
the suit schedule property as he is neither a party to the
said sale deed nor his consent has been obtained. That
the defendant No.3 was not the bonafide purchaser of the
suit schedule property. That the Trial Court and the First
Appellate Court ought not have accepted and relied upon
unregistered Panchayathi Parikath dated 20.10.1980 at
Ex.D4 which was entered into between defendant No.1
and defendant No.2. That the said document is contrary
to the terms of Ex.P4-Family Settlement dated 01.01.1990
that was executed by the defendant No.1 in favour of
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mother of the plaintiff. Thus he further submits that, the
Trial Court has not completed the recording of the
evidence of the plaintiff and has held that the plaintiff due
to his ill-health could not participate in the proceedings by
leading further evidence in the matter. Thus the Trial
Court has proceeded to dispose of the suit based on the
incomplete evidence. Thus he submits that the substantial
question of law would arise in the matter warranting
consideration at the hands of this Court.
9. Heard. Perused the records.
10. the case of the plaintiff is that he is a member of
Hindu Undivided Joint Family consisting of himself,
defendant No.1 and defendant No.2 and the suit schedule
property is the ancestral joint family property. It is his
contention that the suit schedule property though
purchased in the name of Yellappa-father of defendant
Nos.1 and 2 in terms of deed of sale dated 04.05.1934,
the sale proceeds for said purchaser was from the joint
family funds. It is his case that there is was no partition
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to the suit schedule property. Upon the demise of their
fathers the plaintiff and defendant Nos.1 and 2 are entitled
for their respective half shares in the suit schedule
property. The plaintiff has produced certified copy of the
deed of sale deed dated 04.05.1934 under which the suit
schedule property was purchased in the name of one
Yellappa. The Trial Court on appreciation of said
document has found that there is no recital in the said
deed of sale about purchasing the suit schedule property
by investing joint family funds. Further the plaintiff who
examined himself as PW.1 in his deposition has admitted
that the suit schedule property was purchased by Yellappa
in the year 1934 in a public auction and sale deed was
executed and registered in his name on 04.05.1934. He
also admitted that suit schedule property was in
possession and enjoyment of said Yellappa during his
lifetime and upon his demise the revenue records were
mutated in the name of his wife one Muniyamma. The
plaintiff has not produced any material evidence
whatsoever to prove his contention that the suit schedule
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property having been purchased in the name of Yellappa
from and out of the joint family fund. Needless to state
burden of proving that the suit schedule property to be the
joint family property is on the plaintiff who asserts the
same to be so. It is also taken note by the Trial Court
that the plaintiff has not questioned the entries of name of
Yellappa and his wife Muniyamma in the revenue records
in respect of suit schedule property.
11. As regards, the partition between the defendant
Nos.1 and 2 is concerned the plaintiff in his cross-
examination has admitted that after the partition between
the defendant Nos.1 and 2 all records pertaining to the
suit schedule property were mutated in the name of
defendant No.1. He also admitted that the defendant No.1
has sold the suit schedule property on 11.05.2000 to meet
his family necessity. He has also admitted that after the
purchase of the suit schedule property by the defendant
No.3, records have been made out in his name. He also
admitted that he has not produced any document to show
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either his ownership or possession over the suit schedule
property. The Trial Court based on these material
evidences and admissions made by the plaintiff has come
to the conclusion that the plaintiff has failed to prove the
suit schedule property being joint family property in joint
possession of himself and defendant Nos.2 and 3.
12. On the other hand defendants contended that
there was a Panchayathi Parikath on 20.10.1980 in terms
of which suit schedule property was allotted to the share
of Yellappa. The said Panchayathi Parikath produced at
Ex.D4, the revenue records furtherance to the said
Panchayathi Parikath has also been produced. Based on
these material evidence the Trial Court dismissed the suit
of the plaintiff.
13. The First Appellate Court on re-appreciation of the
evidence has confirmed the judgment and decree of the
Trial Court. Since the plaintiff heavily relied upon the
Ex.P4 an unregistered agreement purportedly entered into
between defendant No.1 and the mother of the plaintiff,
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the First Appellate Court has taken note of the fact that
the plaintiff has not examined any attesting witnesses to
the said Ex.P4. Though the plaintiff claimed that the Ex.P4
is the settlement deed, the First Appellate Court has taken
note of the fact the title of the said document is shown as
agreement. Though the said document has been marked
as Ex.P4, the contents of the said document has not been
proved by the plaintiff. Further, nothing prevented the
plaintiff to have summoned and examined the executant of
the said document or the witnesses to the said document.
Plaintiff has neither pleaded nor proved the circumstances
under within the said document Ex.P4 has surfaced.
14. The First Appellate Court has also appreciated the
Ex.P6-application filed by the plaintiff on the before
Tahsildar, Anekal on 30.10.2000, objecting the revenue
entries made in respect of the suit property in the name of
defendant No.1. The contents of Ex.P6, as noted by the
First Appellate Court reveal that the plaintiff has claimed
that his father Muniswamy passed away in the year 1968,
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when the plaintiff was still a minor. That his uncle was
managing the affairs in respect of suit schedule property.
That his uncle died about 15-20 years ago. That There
was a Panchayat in the year 1982 in the presence of
elders of the village at that time defendant had denied to
effect the partition allotting the share to the plaintiff.
Referring to the said contents of Ex.P6 produced by the
plaintiff, the First Appellate Court has opined that the
reading of the said document would also indicate that
when the plaintiff had approached the defendants seeking
partition they had denied the same. This incident of
request and denial had purportedly taken place in the year
1982. Taking note of the contents of said Ex.P6, the First
Appellate Court has arrived at the conclusion that the
present suit which is filed in the year 2006 is after about
22 years.
15. The First Appellate Court also appreciated the fact
of plaintiff not producing any evidence to prove that the
sale consideration to purchase the suit schedule property
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in name of Yellappa was paid by his grandfather Shamanna.
The First Appellate Court also taken note of the fact that the
plaintiff has pleaded ignorance about the properties which
his grandfather-Shamanna possessed. If at all, his
grandfather possessed any land as claimed by the plaintiff
the same ought to have been included in the suit seeking for
partition.
16. The Trial Court and the First Appellate Court after
having appreciated the oral and documentary evidence
produced by the parties have come to just and proper
conclusion of plaintiff not being able to establish the suit
schedule property as joint family property and he having any
share, right, title and interest therein.
17. No infirmity or illegalities can be found with the
findings and conclusion arrived at by the Trial Court and the
First Appellate Court. No substantial question of law would
arise for consideration. Accordingly, appeal is dismissed.
Sd/-
JUDGE
RL
