Karnataka High Court
Sri S B Ramesh vs Sri S B Mohan on 26 June, 2024
Author: V Srishananda
Bench: V Srishananda
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RSA No. 975 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR SECOND APPEAL No.975 OF 2012 (DEC)
BETWEEN:
1. SRI S B RAMESH
S/O LATE BASAPPA
SINCE DEAD REPRESENTED BY LEGAL
REPRESENTATIVES
1(a) SMT. MALA
W/O LATE S.B.RAMESH
AGED ABOUT 43 YEARS
1(b) MR.RAMESH
S/O LATE S.B.RAMESH
AGED ABOUT 23 YEARS
1(c) MISS.RAKSHITHA
D/O LATE S.B.RAMESH
Digitally AGED ABOUT 21 YEARS
signed by
MALATESH
KC NO.1(a) to 1(c) ARE RESIDENTS OF
KODIHALLI VILLAGE
Location:
HIGH TARIKERE ROAD
COURT OF BHADRAVATHI TALUK
KARNATAKA SHIVAMOGGA DISTRICT-577 201
2. S B SURESH
S/O LATE BASAPPA
AGED ABOUT 38 YEARS
AGRICULTURIST
R/O KODIHALLI VILLAGE
TARIKERE ROAD,
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RSA No. 975 of 2012
BHADRAVATHI TALUK
SHIMOGA DISTRICT-577 201
...APPELLANTS
(BY SRI K N DAYALU, ADVOCATE)
AND:
1. SRI S B MOHAN
S/O LATE BASAPPA
AGED ABOUT 50 YEARS
AGRICULTURIST
R/O KODIHALLI VILLAGE
TARIKERE ROAD,
BHADRAVATHI TALUK
SHIMOGA DISTRICT-577 201
2. SRI M SADANANDA SHETTY
S/O MUDDANNA SHETTY
AGED ABOUT 60 YEARS
CONTRACTOR
R/O KESAVAPURA EXTENSION
NEW CHURCH, OLD TOWN
BAHDRAVATHI-577 301
3. SMT. NIRMALAMMA
W/O LATE KRISHNAPPA
AGED ABOUT 48 YEARS
HOUSE HOLD WORK
R/O ATTIGUNDA VILLAGE
ARALIHALLI POST, BHADRAVATHI TALUK
SHIMOGA DISTRICT-577 201
4. SMT. KAMALAMMA
W/O LATE BASAVARAJAPPA
AGED ABOUT 45 YEARS
HOUSE HOLD WORK
R/O UPPAR STREET
NEAR KENCHIBEGILU
BHADRAVATHI TALUK-577 301
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RSA No. 975 of 2012
5. SMT. HALAMMA
W/O LATE RAMACHANDRAPPA
AGED ABOUT 43 YEARS
HOUSE HOLD WORK
R/O KODIHALLI VILLAGE
TARIKERE TAO RAD
BHADRAVATHI TALUK-577 301
...RESPONDENTS
(BY SRI S V PRAKASH, ADVOCATE FOR R2)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 17.12.2011 PASSED IN
R.A.NO.36/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE &
JMFC., BHADRAVATHI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 01.06.2009
PASSED IN O.S.NO.470/1992 ON THE FILE OF THE I ADDL.
CIVIL JUDGE (JR.DN) & JMFC, BHADRAVATHI.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri K.N.Dayalu, learned counsel for the appellants
and Sri S.V.Prakash, learned counsel for the respondent No.2.
2. The second appeal is filed by the plaintiffs in O.S. No.
470/1992 on the file of the First Additional Civil Judge, Junior
Division and JMFC, Bhadravati. Suit is one for declaration and
partition.
3. Said suit on contest came to be dismissed by a
considered judgment dated 01.06.2009 which was challenged
in RA No.36/2009. Said appeal filed by the plaintiffs also got
dismissed by considered judgment dated 17.12.2011.
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4. Being agreed by the concurrent findings of dismissal,
plaintiffs have preferred the present second appeal on the
following grounds.
Both the courts have wholly erred in dismissing the suit of the
plaintiffs and confirmation of the same by the first appellate
court Hence, the judgment and decree of both the courts are
illegal, unlawful and opposed to law and the same are liable to
be set aside by decreeing the suit of the plaintiffs.
In the cross examination of PW1-Ramesh, he has stated that
he has studied only up to 4th standard and further has stated
that he was studying 5th standard and he left in between the
period. Further he has stated that when his father died, he was
14 years old.
At page 4 of the deposition, the PW1 has stated, the mother
died out of the agony of the death of his father and has denied
the suggestion that her mother died of cancer. He has denied
the suggestions that his mother was suffering from cancer and
that the I defendant spent money to his mother. Further
suggestion that the first defendant had taken the mother for
treatment to Bangalore and that he had spent lot of money for
her in Bangalore is denied by the PW1. He has stated that the
mother is taken to the cancer hospital for treatment is true,
but does not mean for treatment to cancer. It is a fact
admitted by the I plaintiff, that the II Plaintiff is the younger
brother of the I plaintiff studied only up to 5th standard.
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Further, the suggestion made that the father of the II
defendant namely Muddanna Shetty was a tenant in the
schedule property is admitted as true. Further suggestion that
during the life time of the father of the Plaintiff, the property
was sold is denied. Further suggestion that the I defendant has
performed the marriage of his sisters is denied by the PW1 and
he has answered, his father has performed the marriage of his
sisters. The PW1 has stated that the marriage of his sister
N.T.Halamma was performed about 9 years back.
At page 5 of the cross examination, the suggestion made that
the I defendant had incurred loan for performing the marriage
of Halamma is denied. It is denied by the PW1 that the
marriage of Halamma was after the death of his mother. The
PW1 has stated that, he is not aware as to what was the rent,
the father of the II defendant was paying. The PW1 has stated
that they have 1¾ of land they grow paddy in the said land.
The I Plaintiff has further stated that they had earnings of
about 25 to 30 thousand from the said land. It is suggested
that the Plaintiffs had no income of Rs.25 to 30 thousand is
denied. It is denied that the Plaintiffs had only the income of
the schedule property and the PW1 has further stated that the
father of the Plaintiffs had acquired two acres of Land out of
his self earnings and that they had income from that land.
At para 6 of the deposition, the PW1 has stated that he is not
aware of the suggestion that, the I defendant along with his
sisters had sold the schedule property measuring 9% feet x 55
feet for Rs.49,500/-. It is denied by the PW1, that because of
the Plaintiffs were minors, the I defendant as guardian to the
plaintiffs has sold the schedule property along with his sisters.
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The further suggestion that the schedule property was sold by
the I defendant for education of the plaintiffs, mother's cancer
treatment and for performing the marriage of his sisters is
denied by the PW1.
Further suggestions made that the tiled house measuring 25 ft
x 50 ft, property of his grandfather at Boothanagudi was sold
to one Prabhakar. Since the Plaintiffs had no interest in the
education, the I plaintiff was doing agriculture. It is further
stated that the plaintiffs and the I defendant are not in good
terms and the suggestion that the plaintiffs and the I
defendant are in good terms from the past 4-5 years is denied.
The suggestion made that neither the plaintiffs nor the I
defendant have got any manner of right in the schedule
property.
The suggestion made that the schedule property was sold for
the education, mothers illness and sisters marriage is denied
The suggestion made that the plaintiffs neither have any right
nor entitled for share in the property is denied by PW1.
Thus from the cross examination nothing is elicited in the cross
examination of PW1. The II defendant, though has not proved
that the I defendant had incurred loan and also sold the
schedule property for the education of the plaintiffs, for the
treatment of their mother and for performing the marriage of
the sister of the plaintiffs. Though nothing is proved by the II
defendant that for the said purposes, the property was sold by
the I defendant to the II defendant. Admittedly, the plaintiffs
have not completed even the 5th Standard, the question of
educating them and incurring the loan for the said purpose is
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falsified. Even there are no materials placed by the II
defendant to show that out of the money of the sale
consideration, the I defendant educated the plaintiffs, got the
medical treatment to his mother and performed the marriage
of his sister Halamma.
The recital in the sale deed dated 26.05.1986 may be verified
wherein it is recited that the sale is made for the purpose to
clearing the loan incurred by the father of the plaintiffs during
his life time, for treatment of the cancer of his mother and to
educate the minor brothers and to clear the loan incurred for
performing the marriage of his sister Halamma, though the
same is not proved, the court below and the appellate court
failed to appreciate the important evidence and the cross
examination of PW1 and thus trial court dismissed the suit of
the plaintiffs and the I appellate court confirmed the judgment
and decree passed by the trial court with erroneous
conclusions & without appreciating the case of the Plaintiffs.
The averment made in para 5 of the plaint that the plaintiffs
were under the impression that the defendant No.2 is still
continuing as a tenant, but when the defendant No.2 was
constructing the building on the said site, on enquiry it is
learnt that the defendant No.1 had executed a sale deed in
favour of the defendant No.2 is not disputed which statement
made in the plaint is not disputed by the Defendant No.2-
Sadananda Shetty either in the cross examination of PW-1 or
in his examination in chief."
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5. The substantial questions of law are raised in the appeal
memorandum as under:
(i) Whether plaintiff prove that they along with first
defendant are the owners of the suit schedule
property, having secured the same through their
father?
(ii) Whether they further prove that the sale of the suit
schedule property on 26.05.1986 by the first
nd
defendant in favour of the 2 defendant is not
binding on them?
(iii) Whether plaintiffs are entitled for the relief of
declaration and partition by metes and bounds and
for separate possession of their share in the suit
property as prayed in the plaint?
(iv) Whether the suit is barred by limitation?
(v) Whether the second defendant proves that the first
defendant was the manager and Kartha of family of
plaintiffs and 1st defendant and he sold away suit
property in his favour for family necessity and
therefore, the sale is binding upon the plaintiffs?
(vi) Whether the suit is bad for non joinder of necessary
parties?
(vii) What decree or order, the parties are entitled?
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6. To appreciate the case of the appellant, it is just
unnecessary for this court to discuss few essential facts which
are culled out as under.
7. Plaintiff Nos.1 and 2 and first defendant are direct
brothers and suit property was sold by defendant No.1 in
favour of defendant No.2. It is contended that part of the suit
property was part of the joint family property inherited from
the father of Plaintiffs and defendant No.1 through registered
sale deed dated 31.10.1972.
8. It is also contended that suit property was in possession
of defendant No.2 as a tenant earlier to the sale and he was
running hotel business in the name and style of Shree
Sudarshan Hindu Military Hotel.
9. The sale deed dated 26.05.1986 executed by first
defendant in favour of second defendant did not bind the
plaintiffs, as defendant No.1 would not have acted as guardian
for and on behalf of the minor plaintiffs in parting away the
property in favour of second defendant under the said sale
deed and at the most, the right, title and interest possessed by
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the plaintiffs to the extent of 1/3rd share in the suit property
could alone be the subject matter of sale and balance 2/3rd
share possessed by the plaintiffs has not been transferred in
the sale lead in favour of the defendant No.2 and therefore, suit
for declaration and partition was filed by the plaintiffs.
10. Defendants entered appearance and resisted the suit
claim by filing detailed written statement.
11. Thereafter, learned trial judge raised necessary issues
and the matter was adjudicated and suit was decreed.
12. Defendants filed an appeal and in the appeal matter got
remitted to the trial court and thereafter additional issues were
framed by the trial court and fresh adjudication took place.
13. After the fresh adjudication, learned Trial judge heard the
parties and dismissed the suit by holding that plaintiffs failed to
prove that alienation made by defendant No.1 did not bind the
plaintiffs.
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14. No doubt, question of limitation was held in favour of
plaintiffs but the title as is enunciated by the plaintiffs was
negated by the learned trial Judge.
15. Being aggrieved by the dismissal of the suit, plaintiffs
filed an appeal before the first appellate court in RA
No.36/2009.
16. Learned Judge in the First Appellate Court, after securing
the records, heard the parties in detail and recorded a
categorical finding in paragraphs 17 and 18 as under and
dismissed the appeal:
"17. In this case, the specific contention of the plaintiffs
is that, though their mother was suffering from Cancer,
their uncle had incurred all the medical expenses of her
motor, who being a Medical Practitioner at Bangalore. As
their uncle was taking care of treatment of their mother,
there was no necessity for availing loan for the treatment
of their mother. But, as rightly observed by the trial court,
the plaintiffs have not at all cared to examine their uncle,
who is a Medical Practitioner at Bangalore to prove that, it
is who has taken care of treatment of mother of plaintiffs
and defendants No.1 and 3 to 5. In the absence of such
necessary evidence, the court is of the considered opinion
that the defendant No.1 has incurred expenses towards
treatment of their mother, who was suffering from Cancer
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disease. Moreover, the plaintiffs Nos.1 and 2 have
admitted that, the marriage of defendant No.5 was
performed after the death of their father and mother by
defendant No.1. Which itself is sufficient to show that the
defendant No.1 had legal necessity to avail loan from the
defendant No.2 and other persons for performing the
marriage of her sister defendant No.5. The defendants
No.3 to 5 have also affixed their signature to the sale
deed, which is executed in respect of suit schedule
property. In favour of defendant No.2. Which clearly goes
to show that they were very much aware about the sale of
suit schedule property by 1 defendant in favour of 2nd
defendant for legal necessity. The averment of the sale
deed itself reveals that the defendant No.1 had availed
some loan for the purpose of marriage of defendant No.5
and for the treatment of his mother, who was suffering
from Cancer disease. Which goes to show that there was
legal necessity for sale of suit schedule property In favour
of defendant No.2 by the defendant No.1, as a manager of
the family during the minority of plaintiffs No.1 and 2.
When that is so, the court is of the considered opinion
that the sale made by the defendant No.1 in respect of
suit schedule property in favour of defendant No.2, for
himself as well as on behalf of minor plaintiffs No.1 and 2,
is binding on the plaintiffs as well as defendant Nos.3 to 5.
The plaintiffs cannot question the sale made by the
defendant No.1 for legal necessity.
18. The learned counsel for the plaintiffs has argued that,
as the Hon'ble Appellate Court has not at all given any
findings with regard to issue No.2 to 6, they need not be
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discussed once again by the trial court. But, the trial court
has re-appreciated the evidence with regard to issue
Nos.2 to 6. As such, the judgement and decree of the trial
court is unsustainable in law. But, a perusal of judgement
and decree of Appellate Court in R.A.No.419/2004, clearly
reveals that the judgement and decree of the trial court
was set aside and remanded the proceedings to the trial
court with a direction to implead all the necessary parties
and to include all the joint family properties in the
schedule and further it is directed to frame-fresh issues on
the basis of additional pleadings of the parties including
the issue with regard to legal necessity for sale of the
schedule property. When that is so, the court is of the
considered opinion that the trial court has acted in
accordance with the directions of the Appellate Court in
RA.No.419/2004 and has given an opportunity to the
plaintiff to implead all the necessary parties, But, even
then, the plaintiffs have not included all the joint family
properties in the schedule, contending that after they
attained majority, they have consented for sale of the
same and hence, they are not necessary to be impleaded
in this case. But, the court is of the considered opinion
that, as per the direction of the Hon'ble Prl. District Court,
Shimoga in RA.No. 419/2004, the plaintiffs ought to have
impleaded all the joint family properties in this suit.
Moreover, in order to avoid multiplicity of proceedings, it
was necessary for the plaintiffs to implead all the joint
family properties. But, the plaintiffs have not done so."
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17. Being further aggrieved by the same plaintiffs are before
this Court.
18. Sri K.N.Dayalu, learned Counsel representing the
appellants vehemently contended that at the first instance. the
suit filed by the plaintiffs came to be decreed and after remand
from the first Appellate Court, the learned trial Judge framed
additional issues. But trial Court did not properly appreciate
the material on record and wrongly dismissed the suit of the
plaintiffs which has been mechanically upheld by the learned
Judge in the first Appellate Court and thus sought for admission
of the appeal on the aforesaid substantial questions of law.
19. Per contra Sri S.V.Prakash, learned counsel for the
respondents supports the impugned judgments.
20. He also pointed out that suit filed by the plaintiffs itself
was barred by limitation in view of the fact that the first
appellant was born on 10.02.1970, attained majority on
10.02.1988 and alienation should have been challenged by him
within 3 years from the date of attaining majority, i.e., on or
before 10.02.1991 and admittedly suit is filed in the year 1992.
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21. He further contended that the learned trial judge and the
learned judge in the first appellate court took into consideration
the relevant aspects of the matter and have rightly dismissed
the suit of the plaintiffs and sought for dismissal of the second
appeal.
22. Having heard the parties in detail, this court perused the
material on record meticulously.
23. On such perusal of the material on record, it is crystal
clear that, the frame of the suit itself is improper.
24. Plaintiff No.1 was admittedly aged 20 years as per the
cause title, whereas, as on the date of presenting the plaint he
was aged 22 years given the date of birth of the plaintiff No.1
being 10.02.1970.
25. Further, it is the specific contention of the plaintiffs that
defendant No.1 could not have alienated the property in favour
of defendant No.2 binding the shares of plaintiffs as well.
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26. The said aspect of the matter was discussed at length by
the learned trial Judge in the judgment at paragraph No.10 and
effect of rights of plaintiffs in suit property.
27. Again in paragraph No.11 the admissions obtained in the
cross-examination of the PW-1 has been taken into
consideration while answering issue No.2 by the learned trial
Judge and supplying cogent and convincing evidence on record
held issue No.2 in the negative.
28. As is pointed out supra, learned Judge in the First
Appellate Court not only concurred with the findings recorded
by the learned Trial Judge, but also supplemented additional
reasons in supporting the dismissal of the suit at paragraph
Nos.17 and 18 as referred to supra.
29. The last substantial question of law viz., whether
defendant No.1 had the right to act as a minor guardian for and
on behalf of the plaintiffs in respect of ancestral property, also
does not merit for consideration inasmuch as the properties
that have been inherited by the plaintiffs even according to the
plaint is through Will.
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30. Under such circumstances, this Court is of the considered
opinion that none of the substantial questions of law would
merit for further consideration.
31. Resultantly, following:
ORDER
(i) Appeal grounds are meritless and substantial
questions of law does not merit for further
consideration.
(ii) Hence, the appeal is dismissed.
(iii) No costs.
Sd/-
JUDGE
kcm
