Karnataka High Court
Sri Mareppa And Anr vs Sampathkumari And Ors on 3 July, 2024
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RSA No. 200215 of 2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 3RD DAY OF JULY, 2024
BEFORE
THE HON'BLE Mrs JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.200215 OF 2019
(PAR & SEP/POSS)
BETWEEN:
1. SRI MAREPPA
S/O SAIBANNA LINGERI
AGED ABOUT 55 YEARS,
OCC: AGRICULTURE
R/O. MALALLI VILLAGE,
TQ. SHAHAPUR,
DIST YADGIRI-585223.
2. MALLAMMA
W/O MAREPPA LINGERI
AGED ABOUT 45 YEARS,
OCC: AGRICULTURE
R/O. MALALLI VILLAGE,
Digitally signed TQ. SHAHAPUR,
by SWETA
KULKARNI DIST YADGIRI-585223.
Location: HIGH
COURT OF
KARNATAKA
...APPELLANTS
(BY SRI CHAITANYAKUMAR CHANDRIKI, ADVOCATE)
AND:
1. SAMPATHKUMARI
D/O RAMAPPA SANKNOOR
W/O REDDY
AGED ABOUT 34 YEARS,
OCC: AGRICULTURE,
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RSA No. 200215 of 2019
R/O. NAIKAL VILLAGE
TQ. SHAHAPUR,
DIST. YADGIRI-585223.
2. MAREMMA
W/O RAMAPPA SANKNOOR
AGED ABOUT 65 YEARS,
OCC: AGRICULTURE
3. JANAPPA
S/O RAMAPA SANKNOOR
AGED ABOUT 40 YEARS,
OCC: AGRICULTURE
4. SUNDER RAJ
S/O RAMAPA SANKNOOR
AGED ABOUT 38 YEARS,
OCC: AGRICULTURE
5. MALLIKARJUN REDDY
S/O BHIMAREDDY GOSWAMY
AGED ABOUT 52 YEARS,
ALL ARE R/O. NAIKAL VILLAGE,
TQ. SHAHAPUR,
DIST: YADGIRI-585223.
...RESPONDENTS
(BY SRI K. N. TIMMAPURI, SMT. SRIDEVI B. ALBA AND
SRI N.L. MALLI, ADVOCATES FOR RESPONDENT)
THIS RSA IS FILED U/S. 100 OF THE CPC, PRAYING TO
ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT AND
DECREE DATED 08.04.2019 PASSED IN R.A. NO.42/2017 ON
THE FILE OF THE SENIOR CIVIL JUDGE AT SHAHAPUR,
CONFIRMING THE JUDGMENT AND DECREE DATED:
22.09.2017 PASSED IN O.S. NO.248/2009 ON THE FILE OF THE
PRL. CIVIL JUDGE AND JMFC AT SHAHAPUR.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 200215 of 2019
JUDGMENT
Against the concurrent findings of facts by the Courts
below, defendant Nos.5 and 6 are before this Court in the
Regular Second Appeal.
2. Parties herein are referred to as per the ranking
before the Trial Court for the sake of convenience.
3. Suit seeking partition and separate possession of
their 1/4th share. The family pedigree is as under:
Ramappa (Died)
|
Maremma (Defendant-1)
|
-----------------------------------------------
| | |
Janappa Sundarraj Sampathkumari
(D-2) (D-3) (Plff)
4. Plaint avers that the suit land is the joint family
property of the plaintiff and defendant Nos.1 to 3 and during
the lifetime of the father of the plaintiff, the suit land was
purchased in the name of defendant No.1, the mother of the
plaintiff and defendant Nos.2 and 3 through registered sale
deed from the joint family funds. It is stated that defendant
No.1 in collusion with defendant Nos.2 and 3 transferred the
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suit land in the name of defendant Nos.2 and 3 behind the back
of the plaintiff. It is stated that the name of defendant Nos.2
and 3 in the revenue records is without giving any legitimate
share to the plaintiff. Further, the registered sale deed
executed by defendant No.2 in favour of defendant No.4 dated
26.07.2010 and the sale deeds executed by defendant Nos.2
and 3 in favour of defendant Nos.5 and 6 dated 03.09.2007 to
be declared as null and void and not binding on the rights of
the plaintiff. The plaintiff sought for 1/4th share in the suit
land.
5. On notice, defendants appeared and filed their
separate written statement. Defendant Nos.1, 3 and 4 did not
file their written statement. Defendant Nos.2, 5 and 6 filed
their written statement. Defendant No.2 stated that there was
an oral partition in the year 2006 and in the suit land 2 acres
towards the west and non-suited land Sy.No.561 4 acres 36
guntas towards the north has fallen to the share of this
defendant and in the same way Sy.No.747 measuring 6 acres 9
guntas has fallen to the share of the plaintiff and remaining 6
acres 9 guntas in Sy.No.747 has fallen to the share of
defendant No.1. It is stated that in land Sy.No.540 to the
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extent of 2 acres towards east the land Sy.No.561 to the extent
of 4 acres 36 guntas towards sought have fallen to the share of
defendant No.3. It is stated that pursuant to the oral partition,
the parties are in possession of their respective shares
separately as owners. Further, plaintiff and defendant No.1
have sold their property as mentioned above by registered sale
deed for their legal necessity in the month of September, 2007
and the purchasers are in possession of the suit property as
owners. Further, the defendant has exchanged his portion i.e.
2 acres in suit land with Mallikarjun Reddy by executing a
registered sale deed dated 26.07.2010 and said Mallikarjun
Reddy has executed registered deed instead of exchange deed
for Sy.No.648 in favour of this defendant. It is stated that the
plaintiff has suppressed material facts and the suit is not
maintainable.
6. Defendant Nos.5 and 6 filed separate written
statement inter alia contending that the plaintiff is not entitled
for any share in the suit land Sy.No.747 as these defendants
have purchased through a registered sale deed from the
vendors. Defendant No.2 was the exclusive owner and
possessor of land bearing Sy.No.747 measuring 6 acres 9
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guntas and for his legal necessity defendant No.2 to clear off
the debts has sold 6 acres 9 guntas to defendant No.5 for
valuable consideration of Rs.1,87,000/- and actual possession
has been delivered to the defendant No.5 pursuant to the
registered sale deed. It is further stated that defendant No.3
was owner and possessor of Sy.No.747 measuring 10 acres 9
guntas and has sold 4 acres through a registered sale deed to
defendant No.6 on 13.04.2000 for his legal necessity and
pursuant to the sale deed defendant No.6 is in possession as
owner of the land. It is stated that plaintiff and defendant
Nos.1 to 3 colluding with each other have filed the present suit
depriving the valuable rights of the defendants. By way of
additional written statement, defendant Nos.5 and 6 contended
that the defendants have paid full consideration amount to the
vendors, more particularly, defendant Nos.2 and 3 and the sale
was for their family necessity and they are the bonafide
purchasers for valuable consideration.
7. The Trial Court, on the basis of the pleadings,
framed the following issues:
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"ISSUES
1. Whether the plaintiff proves that, the suit schedule
properties are the family properties of herself and
the defendant No.1 to 3 and are available for
partition?
2. Whether the defendant No.2 proves that on the Ugad
day of 2006 a oral partition took place between
plaintiff and defendant No.1 to 3 as pleaded in the
W.S.?
3. Whether the defendant No.2 proves that the suit of
the plaintiff is bad for non inclusion of other
properties?
4. Whether the defendant No.5 prove that he is the
owner and possessor of land Sy. No.747 adm 4 acres
as pleaded in the W.S.?
5. Whether the plaintiff is entitled to the reliefs of
partition and separate possession as prayed for?
6. What order or decree?"
8. In order to substantiate their claim, plaintiff
examined herself as PW-1, three witnesses as PWs-2 to 4,
marked documents at Exs.P-1 to P-33. On the other hand,
defendant No.2 examined himself as DW-1, two witnesses as
DW-2 and DW-3, marked documents Exs.D-1 to D-36.
Defendant No.5 examined himself as DW-4, marked documents
Exs.D-37 to D-45.
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9. The Trial Court, on the basis of the pleadings, oral
and documentary evidence, held that:
(i) the suit properties are the joint family
properties of the plaintiff and defendant Nos.1
to 3;
(ii) the defendant No.2 failed to prove that there
was an oral partition effected between the
plaintiff and defendant Nos.1 to 3 and
by the judgment and decree, the Trial Court held that the
plaintiff is entitled for 1/4th share in the suit properties and the
sale deed executed by defendant No.2 in favour of defendant
No.4 dated 26.07.2010 and the sale deed dated 03.09.2007
executed by defendant No.3 in favour of defendant Nos.5 and 6
are null and void and not binding on the plaintiff. The Trial
Court further held that defendant Nos.5 and 6 are entitled to
get share in the share allotted to defendant Nos.2 and 3.
10. Aggrieved, defendant Nos.5 and 6 preferred appeal
before the first appellate Court. The first appellate Court, while
re-appreciating the entire oral and documentary evidence,
concurred with the judgment and decree of the Trial Court.
Aggrieved, defendant Nos.5 and 6 are before this Court.
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11. Heard the learned counsel appearing for the parties
to the lis and perused the material on record.
12. Learned counsel for the appellants submits that the
judgment and decree of the Courts below are contrary to the
evidence and material on record and declaring the suit of the
plaintiff for partition by declaring the sale deed executed in
favour of defendant Nos.5 and 6 are not binding and as null
and void is contrary to the evidence available on record as
defendant Nos.2 and 3 have sold the property for legal
necessity. Learned counsel would submit that defendant Nos.5
and 6 are the bonafide purchasers as the suit land is sold by
defendant Nos.2 and 3 for legal necessity which aspect is
totally overlooked by the Courts below and would submit that
there arises substantial question of law to be considered in the
present appeal.
13. The undisputed fact is that the suit lands belong to
one Ramappa, on his death plaintiff and defendant Nos.1 to 3
being the legal heirs succeeded to the properties. The
defendants contended that there was an oral partition effected
and the suit land has fallen to the share of defendant Nos.2 and
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3 and their names have been mutated in the revenue records.
Defendant Nos.5 and 6 contended that the suit property was
mutated in the name of defendant Nos.5 and 6 as owners and
possessors and defendant Nos.2 and 3 have sold the property
to defendant Nos.5 and 6 for their legal necessity and they are
the bonafide purchasers for valuable consideration.
14. The entry of the name of defendant Nos.2 and 3 in
the revenue records according to defendant No.6 is by way of
an oral partition. Other than the mere assertion that there was
an oral partition and the names of defendant Nos.2 and 3 were
entered, there is no other document to certify the entry of the
name of defendant Nos.2 and 3 pursuant to any registered
partition deed. Even assuming that there was entry of the
name of defendant Nos.2 and 3, the defendants had to
establish by placing cogent evidence that there was a partition
and the partition was effected between the parties. There is no
material forthcoming to establish such contention. In the
absence of the same, mere entry of the name of defendant
Nos.2 and 3 in the revenue records in the absence of any
registered document of title would not confer absolute right to
defendant Nos.2 and 3 to execute a sale deed in favour of
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defendant Nos.5 and 6. The Trial Court, considering the said
aspect has rightly awarded 1/4th share to the plaintiff and
declared that the sale deed executed in favour of defendant
Nos.5 and 6 is not binding on the share of the plaintiff.
However, defendant Nos.5 and 6 are entitled to get a share in
the share that would be allotted to defendant Nos.2 and 3.
15. The first appellate Court being the last fact finding
Court, has re-appreciated the entire oral and documentary
evidence independently and arrived at a conclusion that
defendant Nos.2 and 3 are not the exclusive owners and
undivided share of the plaintiff is involved in the suit properties
without giving any share to the plaintiff, mere entry in the
revenue records does not confer any title through the partition
to defendant Nos.2 and 3. The first appellate Court further
held that defendant No.2 has failed to prove the prior partition
effected between defendant Nos.1 to 3 and the plaintiff. The
manner in which the courts below have assessed the entire oral
and documentary evidence, this Court is of the considered view
that the same does not warrant any interference by this Court
under Section 100 of CPC and no substantial question of law
arises for consideration in this appeal.
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Accordingly, this Court pass the following:
ORDER
(i) The Regular Second Appeal is hereby
dismissed.
(ii) The judgment and decree of the Courts below
stands confirmed.
Sd/-
JUDGE
SWK
CT-VD
