Karnataka High Court
Smt. Rukmawwa W/O Ningappa Kagi vs Shri. Sidram on 30 May, 2024
-1-
NC: 2024:KHC-D:7198
RSA No. 100134 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 30TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 100134 OF 2024 (PAR/POS-)
BETWEEN:
SMT. RUKMAWWA W/O NINGAPPA KAGI
AGE: 66 YEARS, OCC:HOUSEHOLD WORK,
R/O KALUTI NAGAR, TERDAL-587315.
TQ: RABAKAVI BANAHATTI, DIST: BAGALKOT.
...APPELLANT
(BY SRI DINESH M. KULKARNI, ADVOCATE)
AND:
1. SHRI SIDRAM S/O NINGAPPA KAGI
AGE: 39 YEARS, OCC: AGRICULTURE,
R/O KALUTI NAGAR, TERDAL-587315,
TQ: RABAKAVI BANAHATTI,
DIST: BAGALKOT-587101.
2. SHRI SHRIHARI S/O SHAMRAO PISE
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O NEAR DANAMMA TEMPLE,
Digitally signed RABAKAVI 587311, TQ: RABAKAVI BANAHATTI,
by SAROJA
HANGARAKI DIST. BAGALKOT-587101.
Location: HIGH 3. SMT. BHAGYASHRI W/O SHRIHARI PISE
COURT OF
KARNATAKA AGE: 46 YEARS, OCC: HOUSEHOLD WORK,
DHARWAD R/O NEAR DANAMMA TEMPLE
BENCH
DHARWAD RABAKAVI-587311, TQ: RABAKAVI BANAHATTI,
DIST. BAGALKOT.
4. SHRI SIDDAPPA @ SHIDDAPPA S/O NINGAPPA KAGI
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O KALUTI NAGAR, TERDAL-587315,
TQ: RABAKAVI BANAHATTI,
DIST: BAGALKOT-587101.
5. SMT. CHANDRAWWA W/O MUTTAPPA PUJERI
AGE: 41 YEARS, OCC: HOUSEHOLD WORK,
R/O LINGANUR-587301.
-2-
NC: 2024:KHC-D:7198
RSA No. 100134 of 2024
TQ: JAMAKHANDI,
DIST: BAGALKOT-587101.
6. SHRI PRABHU S/O NINGAPPA KAGI
AGE: 39 YEARS, OCC: AGRICUTLURE
R/O KALUTI NAGAR, TERDAL-587315,
TQ. RABAKAVI BANAHATTI
DIST. BAGALKOT-587101.
...RESPONDENTS
THIS RSA FILED UNDER SECTION 100 OF CPC, 1908, PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE DATED 08.04.2022
PASSED BY THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE,
BAGALKOT TO SIT AT JAMAKHANDI AT JAMAKHANDI IN RA
NO.5070/2021 AND THE JUDGMENT AND DECREE DATED 04.10.2021
PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, BANAHATTI IN
O.S.NO.80/2017.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The above second appeal is filed under Section 100
of the Code of Civil Procedure1, by the plaintiffs
challenging the Judgment and decree dated 08.04.2022
passed in R.A.No.5070/2021 by the I Additional District
and Sessions Judge, Bagalkote, to Sit at Jamakhandi2 and
the Judgment and Decree dated 04.10.2021 passed in
Hereinafter referred to as 'CPC'.
Hereinafter referred to as 'the Appellate Court'.
NC: 2024:KHC-D:7198
O.S.No.80/2017 by the Senior Civil Judge and JMFC Court,
Banahatti3.
2. Since the above appeal has been belatedly filed,
I.A.No.1/2024 is filed under Section 5 of the Limitation Act
to condone the delay of 572 days in filing the appeal.
3. In order to consider the application for
condonation of delay, the merits of the appeal are also
being considered.
4. The parties will be referred to as per the
ranking before the trial Court for the sake of convenience.
5. The facts of the case in nutshell are that, the
plaintiff No.1 is the mother and the plaintiff Nos.2, 3, 4,
and defendants are her children. It is the case of the
plaintiffs that, the plaintiff Nos.2 to 4 and the defendant
No.1 being the children of plaintiff No.1 and one Ningappa
Kagi, succeeded to the suit properties after the demise of
Ningappa Kagi and the plaintiffs have 4/5th share in the
Hereinafter referred to as 'the Trial Court'.
NC: 2024:KHC-D:7198
suit schedule properties. That the plaintiffs have executed
a General Power of Attorney4 in favour of the defendant
No.1 who has alienated the suit schedule properties.
However, since he has not given them their share of the
consideration, they have revoked the GPA. That the
defendant No.1 has no right to alienate the suit property.
Hence, the plaintiffs have filed a suit for partition.
6. The defendants entered appearance through
their counsel. However, defendant No.1 has not filed any
written statement. The defendant Nos.2 and 3 who are the
purchasers of the properties have filed a written statement
denying the case of the plaintiffs. It is further contended
by the said defendants that, the plaintiffs and defendant
No.1 alienated the item Nos.1 and 2 properties by a
registered sale deed dated 28.09.2016 in favour of the
defendant No.2 and that the defendant No.2 has sold item
No.2 property in favour of the defendant No.3 by a
registered sale deed dated 29.08.2017. The sale
Hereinafter referred to as 'GPA'.
NC: 2024:KHC-D:7198
transactions have been made by the plaintiffs and
defendant No.1, pursuant to the GPA executed by the
plaintiffs in favour of the defendant No.1 and hence,
alienation made by the defendants are just and property.
Hence, the defendants sought for dismissal of the suit.
7. Consequent to the pleadings of the parties, the
trial Court framed following issues:
ISSUES
1. Whether the plaintiffs prove that, the suit schedule
'B' properties are ancestral joint family properties of
plaintiffs and defendant No.1?
2. Whether the plaintiffs prove that, the suit schedule
Sl.No.1 & 2 properties alienated by the defendant No.1
in favour of Shrishail Bilimishi not binding on their
legitimate share?
3. Whether the defendant No.2 & 3 prove as alleged in
Para No.7 of their written statement?
4. Whether the defendant No.2 proves that he is
bonafide purchaser of the suit schedule Sl.No.1
properties?
5. Whether the defendant No.3 proves that he is
bonafide purchaser of suit schedule Sl. No.2 properties
from the Shrishail Bilimishi?
NC: 2024:KHC-D:7198
6. Whether the defendant No.2 & 3 prove that suit is
bad for non-joinder of necessary parties?
7. Whether the plaintiffs are entitled for 4/5th share in
respect of suit schedule properties?
8. What order or decree?
8. The plaintiff No.2 examined himself as P.W.1
and marked Ex.P.1 to Ex.P.31. Defendant No.2 examined
himself as D.W.1 and marked Ex.D.1 to Ex.D.3. The trial
Court consequent to an appreciation of the oral and
documentary evidence available on record, decreed the
suit of the plaintiff and passed the following:
"ORDER
The suit filed by the plaintiffs is hereby
decreed in part.
Further the plaintiffs and defendant No.1 are
entitled for 1/5th share each in all the suit properties
except suit item No.1 and 2 of 'B' schedule by
meets and bounds.
The suit against the defendant No.2 and 3 in
respect of suit item No.1 plot No.34 and suit item
NC: 2024:KHC-D:7198
No.2 plot No.35 of 'B' schedule is hereby dismissed
with cost.
Draw preliminary decree accordingly."
9. Being aggrieved, the plaintiff No.1 preferred
R.A.No.5070/2021 and defendant No.1 preferred
R.A.No.5061/2021. The respondents in the said appeal
entered appearance before the first appellate Court and
contested the said appeals. The first appellate Court while
considering the said appeals, framed the following points
for consideration:
(1) Whether the plaintiff prove that suit item Nos.
1 and 2 properties have been sold by defendant No.1
after revocation of the power of attorney executed in his
favour and therefore the said sale is not binding on their
right of share and they are entitled for share in suit item
Nos. 1 and 2 properties also?
(2) Whether appellant in R.A.No.5061/2021 has
made out grounds for remanding matter back to the trial
court for deciding afresh after providing him an
opportunity to file the written statement and contest the
suit?
(3) Whether the appellants in both the appeals
substantiate that the impugned judgment passed by the
NC: 2024:KHC-D:7198
learned Senior Civil Judge & JMFC, Banahatti in
O.S.No.80/2017 dated 04-10-2021 is oppose to law and
facts and evidence requiring interference by this court in
appeal?
(4) What Order?
10. The first appellate Court by its Judgment and
decree dated 08.04.2022 dismissed both the appeals and
confirmed the Judgment and decree passed by the trial
Court. Being aggrieved by the same, the present second
appeal is filed by the plaintiff No.1.
11. Learned counsel for the appellants vehemently
contends that, both, the trial Court and the first appellate
Court have erred in not granting a share to the plaintiffs in
respect of the suit item Nos.1 and 2 properties. Hence, he
seeks for allowing of the present appeal and granting of
the relief as sought for.
12. The submissions of the learned counsel for the
appellants have been considered and the materials placed
on record have been perused.
NC: 2024:KHC-D:7198
13. It is forthcoming that, the plaintiffs have filed a
suit claiming 4/5th share in the suit properties. In the
schedule B to the plaint, 13 items of the properties have
been stated. The trial Court has dismissed the suit for
partition in respect of item Nos.1 and 2 properties which
have been alienated in favour of the defendant Nos.2 and
3, respectively. In respect of the other item properties, the
suit for partition has been decreed and the plaintiffs have
been granted 1/5th share in the said properties. The
present appeal is only in respect of non granting of a share
to the plaintiffs in respect of item Nos.1 and 2 properties.
14. With regard to the said aspect of the matter, it
is clear that, the trial Court has framed issue Nos.2 to 5
with regard to the alienations made. While considering the
said issues, the trial Court noticed that, the said item
Nos.1 and 2 properties have been alienated by way of a
registered Sale Deed dated 28.09.2016 by the defendant
No.1 also acting as GPA of the plaintiffs.
- 10 -
NC: 2024:KHC-D:7198
15. It is further noticed that, the suit item No.1 and
2 properties were alienated by registered Sale Deed dated
28.09.2016 in favour of the defendant No.2 and defendant
No.2 thereafter executed a registered Sale Deed dated
29.08.2017 alienating the suit item No.2 property in
favour of the defendant No.3. The trial Court noticing the
contention of the plaintiff that, they had revoked the GPA,
has recorded a finding that, the plaintiffs have not placed
any documentary evidence on record to demonstrate the
procedure under which the GPA has been revoked. Hence,
the trial Court has dismissed the suit of the plaintiffs
insofar as item Nos.1 and 2 properties are concerned.
16. The plaintiffs have raised a similar ground in
R.A.No.5070/2021. The first appellate Court has framed
point No.1 for consideration with respect to the contention
put forth by the plaintiffs. While considering the said point,
the first appellate Court has also recorded a finding that,
the pleadings of the plaintiffs are totally silent as to when
the legal notice revoking the GPA was issued and when it
- 11 -
NC: 2024:KHC-D:7198
was served on defendant No.1 and no documentary
evidence is produced to place on record nor the notice
revoking the GPA is produced. Further the first appellate
Court has recorded a finding that the plaintiffs were fully
aware of the sale transaction made by the defendant No.1
and that they have not raised any objection to the same.
It is further held that, no acceptable evidence is adduced
to substantiate that the GPA executed by the defendant
No.1 stood revoked as on the date of the sale
transactions.
17. It is clear from the aforementioned that, the
trial Court has adequately appreciated the oral and
documentary evidence on record and decreed the suit of
the plaintiffs insofar as item Nos.3 to 13 of the properties,
while dismissing the suit insofar as item Nos.1 and 2 of the
properties are concerned which has been appropriately re-
appreciated by the first appellate Court.
18. The contention put forth by the appellants in
the present appeal has been adequately considered by the
- 12 -
NC: 2024:KHC-D:7198
trial Court and the first appellate Court and concurrent
findings of facts have been recorded holding that, no
material have been produced by the plaintiffs to
demonstrate that the GPA executed by them in favour of
the defendant No.1 has been revoked prior to the sale
made insofar as the item Nos.1 and 2 properties are
concerned.
19. In view of the aforementioned, no substantial
question of law arises for consideration. Hence, the
present appeal is liable to be dismissed at the state of
admission itself.
20. In view what is stated above, no useful purpose
will be served in considering I.A.No.1/2024. Hence,
I.A.No.1/2020 as well as the appeal of the plaintiff is
dismissed as being devoid of merits.
Sd/-
JUDGE
SVH
CT:GSM
