Karnataka High Court
Sri M G Ningappa vs Sri Devaraj S/O Sri Kavalu Girigowda @ ... on 4 July, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2024:KHC:25349
RSA No. 101 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
REGULAR SECOND APPEAL NO. 101 OF 2013 (DEC)
BETWEEN:
SRI. M.G. NINGAPPA
S/O SRI. GOPEGOWDA
AGED ABOUT 52 YEARS
R/O MATADHA HOSAHALLY
DESHANE POST, JAVAGAL HOBLI,
ARSIKERE TALUK,
HASSAN DISTRICT 573 122
...APPELLANT
(BY SRI. A RAVISHANKAR.,ADVOCATE)
AND:
SRI. DEVARAJ
S/O SRI. KAVALU GIRIGOWDA @ GIRIGOWDA ,
Digitally signed AGED ABOUT 50 YEARS,
by
NARAYANAPPA PRESENTLY R/AT
LAKSHMAMMA GUDDADA KENGANAHALLY,
Location: HIGH HANDRALU POST, JAVAGAL HOBLI,
COURT OF
KARNATAKA ARSIKERE TALUK,
HASSAN DISTRICT 573 122
...RESPONDENT
(BY SRI. SHREEDEEP N., ADVOCATE FOR
SRI. NAGAIAH, ADVOCATE)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED 6.11.2012 PASSED IN
R.A.NO.82/2008 ON THE FILE OF SENIOR CIVIL JUDGE &
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RSA No. 101 of 2013
J.M.F.C., ARSIKERE, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DATED 9.7.2008
PASSED IN OS.NO.141/06 ON THE FILE OF ADDITIONAL CIVIL
JUDGE (JR.DN.) AND JMFC, ARSIKERE.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. The appellant, who is the defendant in
O.S.No.141/2006 and the appellant in
R.A.No.82/2008 is before this Court challenging the
concurrent findings of the Trial Court and the First
Appellate Court. The respondent had filed a suit in
O.S.No.141/2006 seeking for the following reliefs:-
"Declaration that the suit schedule properties are
his ancestral properties and the Sale Deed dated
31..07.1997 is not binding on him and also for
possession of the suit schedule properties and
mesne profits"
2. The Trial Court vide its judgment dated 09.07.2008
decreed the suit, the operative portion of the said
decree reads as under :-
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"Suit of the plaintiff is hereby decreed with costs
as follows :-
1. Hereby declared that suit schedule
properties are the ancestral properties of the
plaintiff.
2. Hereby declared that the Sale Deed dated
31.7.97 executed by Sakamma in favour of
defendant with respect to suit schedule properties
is not binding on the plaintiff.
3. Defendant is hereby directed to handover
the possession of the suit schedule property to the
plaintiff within three months from the date of this
judgment.
Plaintiff is entitled to get mesne profits with
respect to suit schedule property, from the date of
suit till the date of delivery of possession. There
shall be separate enquiry U/O 20 R.12 CPC for
mesne profits."
3. The defendant took up the same in an appeal before
the First Appellate Court in R.A.No.82/2008. The
First Appellate Court dismissed the said appeal and
confirmed the judgment and decree of the Trial
Court. It is challenging the same, the defendant is
before this Court. The above appeal was admitted on
17.04.2013 to answer the following substantial
questions of law:-
"Whether, on the admitted facts of the case,
both the courts below had erred in law in
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declaring the plaintiff as the absolute owner of
the entire suit properties totally measuring one
acre ?"
4. Sri A. Ravi Shankar, learned counsel for the appellant
would submit that though in the suit there were
several issues raised and pleading taken up, and
arguments advanced as regards the adoption of the
plaintiff/Devaraju by Sri. Ajjegowda and Sakkamma,
he does not now wish to press into service any of
those pleadings or arguments.
5. His submission now is that the family was owning 5
acres of land, upon expiry of Ajjegowda, his wife
Sakkamma sold one acre of the said land in favour of
the defendant. This one acre can be considered to
be from and out of the entitlement of Sakamma
inasmuch as family owning five acres of land, on the
expiry of Ajjegowda there is notional partition
between Ajjegowda and the plaintiff/Devaraj, each
being entitled to 2 acres 20 guntas of land.
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6. Upon the expiry of Ajjegowda, the property falling to
the share of Ajjegowda would devolve upon and have
to be partitioned amongst Sakkamma and Devaraj,
each of them being entitled to 1 acre 10 guntas of
land. The property sold in favour of the defendant
being one acre, which is lesser than the entitlement
of Sakamma, would not in any manner impinge upon
the rights of Devaraj in the entire property. Even if
the said sale is held not to be binding on Devaraj's
share, it would be binding on Sakkamma's share,
since the execution of the sale deed is not in dispute
and the entitlement of the defendant under the said
sale deed is not in dispute. Therefore, he contends
that this aspect has not been considered in the
proper perspective by the trial Court and the First
Appellate Court.
7. Sri Shreedeep N., learned counsel appearing for
Sri Nagaiah, learned counsel for the respondent
would submit that the plaintiff was not a party to the
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sale deed executed by Sakamma, therefore, the said
sale cannot be binding on the share of the plaintiff.
The plaintiff's adoption having been established and
the plaintiff succeeding to the joint family properties
of Ajjegowda, he would have a right on the entire
property. Sakkamma could not have sold the
property by metes and bounds and demarcated a
particular extent of land for sale in favour of the
defendant. Thus he submits that the Trial Court and
the First Appellate Court have rightly considered the
dispute between the parties and the judgment
passed them are proper and correct, not requiring
this Court to interfere in the matter.
8. Heard Sri. A Ravi Shankar, learned counsel for the
appellant and Sri Shreedeep N., learned Counsel for
Sri. Nagaiah, learned counsel for the respondent and
perused the records.
9. As rightly contended by Sri A. Ravi Shankar, learned
counsel for the appellant, it would not be required for
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the appellant to have, in any manner questioned the
adoption of the plaintiff. It is due to the said
questioning that the litigation persisted between the
parties from the year 2006 till now. What was sold
to the defendant was only one acre of land, which
could have been, before the trial court acceded to
and submitted that it is the only said one acre, which
the defendant is involved, which should have been
fallen to the share of Sakamma by applying the
principles of notional partition.
10. Instead of doing so having challenged the adoption,
the Trial Court and the First Appellate Court had to
deal with that issue in extensio. However, even the
Trial Court has observed that the sale deed dated
31.07.1997 executed by Sakkamma in favour of the
defendant with respect to the suit schedule property
is not binding on the plaintiff. The sale deed has not
been set aside by the Trial Court, nor it been
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declared as invalid as sought for by the plaintiff in
the prayer column of the suit.
11. The Trial Court at paragraph 13 has also come to the
conclusion that the defendant is entitled to share of
Sakamma and that she has to get that share by
proper procedure i.e., by way of filing a suit for
partition. However the Trial Court taking into
consideration that the defendant is in possession of
the property has directed the defendant to hand
over possession to the plaintiff.
12. It is this finding which in my considered opinion,
ought not to have been rendered by the trial Court.
The sale deed having been executed as regards an
extent of land which is within the ambit of her share
in the property and the defendant having been put in
possession of the property, while relegating the
defendant to a suit for partition ought not to have
directed to hand over possession of the property to
the plaintiff. The sale deed being admitted by one
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and all, the possession of the property being with the
defendant having been admitted by the plaintiff, it is
seen that undivided interest in the land has been sold
in favour of the plaintiff identified by metes and
bounds. More so, when the defendant has been put
in physical possession of the property sold in his
favour.
13. In that view of the matter, I am of the considered
opinion that the direction insofar as directing the
defendant to hand over possession of one acre of
land to the plaintiff is concerned, is not substantiated
either on law or on facts. Hence the substantial
question of law raised is answered by holding that
the trial Court and the First Appellate Court ought not
to have declared the plaintiff as the absolute owner
of the entire suit schedule property including the one
acre of land sold by Sakkamma from and out of her
share in favour of the defendant.
14. In that view of the matter, I pass the following :-
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ORDER
i. The appeal is partly allowed.
ii. The judgment of the Trial Court is modified in the
following terms:
(a) The suit schedule properties are declared to be
the ancestral properties.
(b) The sale deed dated 31.07.1997 executed by
Sakamma in favour of the defendant with respect to
the suit schedule property is held to be not binding
on the share of the plaintiff in the suit schedule
property.
(c) The defendant being in possession of the land
covered under the sale deed dated 31.07.1997 would
be entitled to continue in possession of the said land.
In the event of either of the parties wanting to
reallocate the properties, the parties would be at
liberty to initiate final decree proceedings in terms of
the above.
(d) The sale having been executed in favour of the
defendant on 31.07.1997 and valuable consideration
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having been paid, there would be no enquiry
required into mesne profits. It is declared that the
plaintiff would not be entitled to any mesne profits.
15. Pending I.A.No.2/2013 if any, stands disposed of.
Sd/-
JUDGE
NG
CT:SNN
