Karnataka High Court
T P Kushalappa vs T P Ganapathy on 5 June, 2024
Author: V Srishananda
Bench: V Srishananda
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RSA No. 2312 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR SECOND APPEAL NO. 2312 OF 2012 (DEC)
BETWEEN:
T.P. KUSHALAPPA
S/O LATE POOVAIAH,
AGED ABOUT 62 YEARS,
R/O BILIGERI VILLAGE,
HAKATHUR POST,
MADIKERI TALUK - 571 201.
...APPELLANT
(BY SRI. PRASANNA V.R., ADVOCATE)
AND:
1. T.P. GANAPATHY
SINCE DEAD BY HIS LRS
Digitally 1(A). T.G. KAVERIAMMA
signed by AGED ABOUT 73 YEARS,
MALATESH
KC W/O LATE T.P. GANAPATHY.
Location:
HIGH
COURT OF 1(B). T.G. KUMARAPPA
KARNATAKA AGED ABOUT 48 YEARS
S/O LATE T.P. GANAPATHY
BOTH ARE R/AT MUTHARMUDI VILLAGE
HAKATHUR POST,
MADIKERI-571 201.
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RSA No. 2312 of 2012
1(C). T.G. SHEELAVATHI @ SHEELA
AGED ABOUT 50 YEARS
D/O LATE T.P. GANAPATHY,
KORANGALA VILLAGE,
BHAGAMANDALA,
MADIKERI - 571 201.
2. SMT. DEVAKKI
AGED ABOUT 55 YEARS,
KATTEMADU VILLAGE,
MADIKERI TALUK - 571 201.
3. SMT. DAMAYANTHI
AGED ABOUT 37 YEARS,
KATTEMADU VILLAGE,
MADIKERI TALUK - 571 201.
4. P.A. ABBAS
SINCE DEAD BY HIS LRS
4(A). SMT. P.A. AMEENA,
AGED ABOUT 62 YEARS,
W/O LATE P.A. ABBAS.
4(B). P.A. HANEEF,
AGED ABOUT 36 YEARS,
S/O LATE P.A. ABBAS.
4(C). P.A. ABDUL SUKUR,
AGED ABOUT 34 YEARS,
S/O LATE P.A. ABBAS.
4(D). P.A. ABOOBAKAR,
AGED ABOUT 32 YEARS,
S/O LATE P.A. ABBAS.
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RSA No. 2312 of 2012
4(E). P.A. HAMSA
AGED ABOUT 30 YEARS
S/O LATE P.A. ABBAS.
4(F). P.A. BASHEER
AGED ABOUT 26 YEARS
S/O LATE P.A. ABBAS.
4(G). MISS. P.A. JAMEELA,
AGED ABOUT 28 YEARS,
D/O LATE P.A. ABBAS.
ALL ARE R/AT IKOLA VILLAGE
MADIKERI TALUK - 571 201.
4(H). SMT. FATHIMA
AGED ABOUT 31 YEARS
D/O LATE P.A. ABBAS,
W/O SULAIMAN,
R/O MAPILLETHODU, PONNAMPET,
VIRAJPET TALUK - 571 201.
4(I). SMT. NASEEMA
AGED ABOUT 29 YEARS,
D/O LATE P.A. ABBAS,
W/O ASSU,
R/O CHAMA, MATHADI VILLAGE,
VIRAJPET TALUK - 571 206.
...RESPONDENTS
(BY SRI. G. RAVISHANKAR SHASTRY, ADVOCATE FOR
R4(A - I), R1(C);
R2, R3 ARE SERVED;
V/O DATED 19.04.2017, R1(B AND C) ARE
TREATED AS LRS OF DECEASED R1(A);
V/O DATED 22.04.2019, NOTICE TO
R1(B) HELD SUFFICIENT)
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RSA No. 2312 of 2012
THIS RSA IS FILED U/S. 100 R/W ORDER 42 RULE 1 AND
2 OF CPC AGAINST THE JUDGMENT & DECREE DATED
30.8.2012 PASSED IN R.A.NO.3/2007 ON THE FILE OF AD-HOC
DISTRICT JUDGE AND PRESIDING OFFICER, FAST TRACK
COURT, KODAGU,MADIKERI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 7.12.2006
PASSED IN OS.NO.44/1996 ON THE FILE OF CIVIL JUDGE
(SR.DN.), MADIKERI.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the plaintiff rising
following substantial questions of law to be considered in
this second appeal:
"1. Whether the judgment and decrees of the
courts below are required to be set aside in
view of the ratio in I.L.R. 1993 KAR 2959?
2. As there was a partition earlier and the
schedule property was allotted to the appellant
and the appellant is not a party to the sale
deed, such being the situation the sale deed
executed by the 1st respondent in favour of the
4th respondent is valid in law or otherwise.
Admittedly the land was cultivated with coffee,
coffee registration certificate was issued in
favor of the appellant, therefore the possession
of the property in law is admitted
authoritatively. Such being so there was no
property physically for delivery of the property
in favor of the 4th respondent, such being the
situation whether the judgment and decree
passed by the courts below is sustainable in
law?"
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2. Brief facts of the case which are utmost
necessary for consideration of the appeal for admission are
as under:
Plaintiff by name T.P.Kushalappa filed a suit in
O.S.No.44/1996 with the following prayer:
a. A declaration to the effect that the Plaintiff is
the rightful owner of the suit schedule property
and the sale deed dated 15-9-94 registered as
document No.467 of Book I, Volume 732 of
1994-95 at page 81-86, dated 16-9-94 in the
Office of Sub-Registrar, Madikeri is a nullity in
law and the same is not binding on the
Plaintiff.
b. A direction to the effect that the plaintiff be put
in possession of the suit schedule property.
c. Costs of the suit and such other relief or reliefs
as this Hon'ble Court may deem fit and
necessary to award in the circumstances of this
case.
3. Schedule of the property reads as under as per
the plaint:
"Un-pri-sagu Bane survey No.322/1 of 1-90
acres out of 5-32 acres of Coffee bounded on
the East by Sy.No.324. West by Road, South
by Biligeri village Boundary and North by
Sy.No.322/2, situated at Biligeri village,
Madikeri Taluk."
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4. According to the plaint averments, plaintiff is
the owner of the suit properties having acquired the same
by inheritance. Defendant No.1 being the senior most
male member of the family of the plaintiff, soon after the
death of previous Pattedar, stepped into the shoes of the
Pattedar and he has parted with excess of what he was
entitled to as the family property. Therefore, for the sake
of Thekkada family of Mutharmudi and Biligeri villages,
defendant No.1 was accepted as the Pattedar and he has
been discharging the functions of the Pattedar.
5. Further, it is contended that in the year 1987
and 1998, defendant No.1 made attempts to part away
with the suit property and therefore, a public notice was
issued in the local daily newspaper 'Shakthi' on
24.01.1988 about the consequences that would endure by
the alleged sale.
6. Despite issuing such public notice, defendant
Nos.1 to 3 with a sole intention of defrauding the plaintiff,
without notice to the plaintiff, sold the suit property in
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excess of what defendant No.1 was entitled to defendant
No.4 by registered sale deed dated 15.09.1994 in a sum of
Rs.60,000/-. Further, the plaintiff contended that
defendant No.1 had no right what so ever to alienate the
suit property in favour of defendant No.4 and therefore,
sought for decreeing the suit as referred to supra.
7. In pursuant of the summons issued, defendant
Nos.2 to 4 entered appearance and filed a detailed written
statement denying the plaint averments in toto.
8. The Trial Court raised necessary issues and trial
was held.
9. In order to prove the case of the plaintiff,
plaintiff got examined himself as P.W.1 and three
witnesses viz., K.B.Devaiah, Padmanabhaiah and
K.P.Somaiah were examined as P.W.2 to P.W.4 and relied
on 34 documents which were exhibited and marked as
Exs.P.1 to Ex.P.34. Among them Exs.P.1, P.3, P.4, and
P.7 are the jamabandi extracts, Ex.P.2 is the copy of the
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sale deed dated 15.09.1994, Ex.P.5 is the notice. Ex.P.6
is the paper publication. Ex.P.8 is the order of the
Tahasildar dated 24.10.1996, Exs.P.9 to 27 are the
assessment receipts, Ex.P.28 is the RTC extract, Ex.P.29 is
the receipt, Ex.P.30 is the sketch, Ex.P.31 is the order of
Deputy Commissioner, Ex.P.32 is the order of Assistant
Commissioner, Ex.P.33 is the Coffee Registration
Certificate, Ex.P.33(a) is the copy of Ex.P.33 and Ex.P.34
is the reply memo.
10. As against the material evidence placed on
record, P.A.Abbubakar, who was one of the legal
representative of deceased defendant No.4 got examined
as D.W.1.
11. Learned Trial Judge after conclusion of
recording of the evidence, heard the arguments and by
considering the rival contentions of the parties, dismissed
the suit of the plaintiff.
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12. Being aggrieved by the same, plaintiff filed an
appeal before the First Appellate Court in RA No.3/2007.
13. Learned Judge in the First Appellate Court after
securing the records and hearing the parties, dismissed
the appeal filed by the plaintiff.
14. Being not satisfied with the finding recorded by
both the Courts, plaintiff have filed the present appeal on
following grounds:
The appreciation of the evidence by the Trial
Court as well as the Lower Appellate Court is
required to be reconsidered as the findings of
the issues are not sustainable. Hence the
judgment and decrees of the courts below are
required to be set aside.
The ratio expounded in ILR 1993 KAR 2959 is
required to be interpreted as the ratio is only
applicable for jamma bane land and also all
bane lands including unprivileged sagu bane
land.
15. Sri.Prasanna V. R., learned counsel for the
appellants reiterating the grounds urged in the appeal
memorandum vehemently contended that defendant No.1
had already alienated his portion of the lands and he being
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the eldest male member, was accepted as the Pattedar of
Thekkada family and was functioning pattedarship in
respect of Thekkada family of Mutharmudi and Biligeri
villages. Defendant No.1 misused the said Pattedarship
and sold 1 acre 90 cents of the land, out of the total area
of 5 acre 32 cents of unprivileged sagu bane land in
Sy.No.322/1 in favour of defendant No.4 through his
daughter, who acted as Power of Attorney of the Vendor.
When the plaintiff came to know about the said attempts,
plaintiff cautioned the general public by issuing a
notification in the local newspaper and despite the same,
only with an intention to defraud the plaintiff, defendant
No.1 has sold in favor of defendant No.4 and thus, action
was initiated which has not been properly appreciated by
both the Courts and sought for allowing the appeal in
respect of aforesaid substantial questions of law.
16. Per contra, Sri.G.Ravishankar Shastry, learned
counsel representing legal representatives of respondent
No.4 supported the impugned judgments.
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17. In the light of the arguments put forth on behalf
of the parties, this Court perused the material on record,
meticulously.
Reg. Substantial question of law Nos.1 and 2:
18. On such perusal of the material on record,
admittedly, defendant No.1 being the eldest male
member, was entitled to function as Pattedar. According
to the plaintiff, even though defendant No.1 was accepted
to be Pattedar of the family, there was a partition when
the father of the plaintiff was alive and as such, the
Pattedarship enjoyed by defendant No.1 did not grant him
any right to alienate the property beyond his share and
therefore, sale in favour of defendant No.4 is incorrect.
19. It is noticed that both the Courts below did
bestow their attention on to the said aspect of the matter.
It is also noticed by both the Courts that there is no
specific averment about the said partition. As such, a
categorical finding has been recorded about the absence of
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previous partition. RTC extract produced by the plaintiff
also depicts that there was no separate number that has
been given to the share of the parties, as per the alleged
previous partition nor podi has taken place. Revenue
entries were not mutated. If at all, if any previous
partition has taken place as is contended by the plaintiff,
parties would have approached the revenue authorities
and sought for classification of the revenue entries and got
mutated their names in the revenue records in respect of
the shares that are allotted to them as per the previous
partition.
20. Further, it is noted that land has been sold in
favour of defendant No.4 even according to the plaint
averments itself. It is also found from the plaint
averments that the said land which has been alienated is a
unprivileged sagu bane land.
21. Therefore, the substantial question of law No.1
that the judgments of the Court below is contrary to the
principles of law enunciated by this Court in the case of
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Cheekere Kariyappa Poovaiah Vs. State of Karnataka
reported in ILR 1993 KAR 2959 cannot be countenanced
in law.
22. However, Sri.Prasanna V. R., learned counsel
for the appellants strenuously contended that there is a
distinction between the 'jamma bane land' and 'sagu bane
land' in the said judgment. He invited the attention of this
Court in regard to the discussion on point No.1 in
paragraph No.7 of the said judgment where under their
Lordships of the Full Bench have dealt in detail as to the
meaning of jamma bane lands and while so dealing with it,
their Lordships distinguished the sagu tenure vis-à-vis, the
jamma bane land.
23. In the case on hand, when there is a specific
mention in the plaint schedule that the land in question is
a 'unprivileged sagu bane land', this Court need not have
to discuss further with regard to the principles of law
enunciated in the Full Bench judgment in differentiating
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the suit land whether it could be construed as jamma bane
land.
24. Accordingly, substantial question of law No.1
would not arise for further consideration by admitting the
appeal.
25. Insofar as second substantial question of law as
referred to supra with regard to alienation is concerned,
since, the specific date of partition is not mentioned and
no proof is placed before the Trial Court by the plaintiff
and in the absence of any pleadings with regard to the
partition in the plaint, this Court is of the considered
opinion that the second substantial question of law raised
in the appeal would not also be available for consideration
so as to admit the appeal for further consideration.
26. In view of the foregoing discussions, substantial
questions of law raised in the appeal memorandum are not
having any merit for further consideration.
27. Accordingly, the following:
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ORDER
i. Admission is declined.
ii. Regular second appeal is dismissed.
Sd/-
JUDGE
KAV
