Karnataka High Court
Yallappa S/O Maritammapa Maradagi vs Suresh S/O Yallappa Medar Alias Kinagi on 21 November, 2024
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RSA No. 100655 of 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 21ST DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
RSA NO. 100655 OF 2018 (DEC)
BETWEEN:
YALLAPPA S/O. MARITAMMAPA MARADAGI,
AGE: ABOUT 65 YEARS, OCC. NIL,
R/O. UNKAL, HUBBALLI,
SINCE INSANE AND UNSOUND MIND,
REPRESENTED BY HIS NEXT FRIEND,
SMT. PARAWWA W/O. YALLAPPA MARADAGI,
AGE: ABOUT 49 YEARS,
OCC. AGRICULTURE AND HOUSEHOLD,
R/O. UNKAL, HUBBALLI.
... APPELLANT
(BY SRI. PARASHURAM SAJJANARR, ADVOCATE FOR SRI.
VISHWANATH S BICHAGATTI)
Digitally
signed by
VISHAL AND:
VISHAL NINGAPPA
NINGAPPA PATTIHAL
PATTIHAL Date:
2024.11.25
10:40:46
+0530 1. SMT. GEETA W/O. YALLAPPA MEDAR
ALIAS KINAGI,
AGE ABOUT 71 YEARS, OCC. HOUSEHOLD,
R/O. MADAR ONI, KHANAPUR,
TQ. BELAGAVI.
2. SURESH S/O. YALLAPPA MEDAR
ALIAS KINAGI,
AGE ABOUT 63 YEARS, OCC. PRIVATE SERVICE,
R/O. MADAR ONI, KHANAPUR,
TQ. BELAGAVI.
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RSA No. 100655 of 2018
3. VILAS S/O. YALLAPPA MEDAR
ALIAS KINAGI
AGE ABOUT 55 YEARS, OCC. PRIVATE SERVICE,
R/O. MADAR ONI, KHANAPUR,
TQ. BELAGAVI.
4. SMT. HONAVVA W/O. SHIVALINGAPPA MEDAR
ALIAS KINAGI,
AGE ABOUT 83 YEARS, OCC. HOUSEHOLD,
R/O. MADAR ONI, KHANAPUR,
TQ. BELAGAVI.
5. KASHAVVA D/O. SHIVALINGAPPA MEDAR
ALIAS KINAGI,
AGE ABOUT 64 YEARS, OCC. HOUSEHOLD,
R/O. MADAR ONI, KHANAPUR,
TQ. BELAGAVI.
6. PUTTAPPA S/O. SHIVALINGAPPA MEDAR
ALIAS KINAGI,
AGE ABOUT 51 YEARS, OCC. PRIVATE SERVICE,
R/O. MADAR ONI, KHANAPUR,
TQ. BELAGAVI.
7. BABY D/O. SHIVALINGAPPA MEDAR
ALIAS KINAGI,
AGE ABOUT 51 YEARS, OCC. PRIVATE SERVICE,
R/O. MADAR ONI, KHANAPUR,
TQ. BELAGAVI.
8. NIRMALA ALIS NIMMAVVA D/O. SHIVALINGAPPA
MEDAR ALIAS KINAGI,
AGE ABOUT 53 YEARS, OCC. HOUSEHOLD,
R/O. MADAR ONI, KHANAPUR,
TQ. BELAGAVI.
9. MALTAVVA ALIAS MALATI D/O. SHIVALINGAPPA
MEDAR ALIAS KINAGI,
AGE ABOUT 51 YEARS, OCC. HOUSEHOLD,
R/O. MADAR ONI, KHANAPUR,
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RSA No. 100655 of 2018
TQ. BELAGAVI.
10. YALLAVVA S/O. SHIVALINGAPPA MEDAR
ALIAS KINAGI,
AGE ABOUT 49 YEARS, OCC. HOUSEHOLD,
R/O. MADAR ONI, KHANAPUR,
TQ. BELAGAVI.
11. RUDRAVVA W/O. NAGAPPA MARADAGI,
AGE ABOUT 46 YEARS, OCC. HOUSE HOLD,
R/O. UNKAL, HUBBALLI.
12. BASAVARAJU S/O. NAGAPPA MARADAGI,
AGE ABOUT 53 YEARS,
OCC. AGRICULTURE, R/O. UNKAL,
HUBBALLI.
13. MUDAKAPPA S/O. NAGAPPA MARADAGI,
AGE ABOUT 50 YEARS,
OCC. AGRICULTURE, R/O. UNKAL,
HUBBALLI.
14. GADIGEVVA CHANNAVEERAPPA VITHALPUR
AGE ABOUT 63 YEARS, OCC. HOUSE HOLD,
R/O. BUDIHAL, TQ. KUNDGOL,
DIST. DHARWAD.
15. SMT. KAMALAVVA W/O. SIDDAPPA MARADAGI,
AGE ABOUT 69 YEARS, OCC. HOUSE HOLD,
R/O. YALLAVVANAGUDI, UNKAL,
HUBBALLI.
16. MAHALAXMI W/O. BASAPPA AGADI,
AGE ABOUT 50 YEARS, OCC. HOUSE HOLD,
R/O. MUTTALLI, TQ. KALAGHATAGI,
DIST. DHARWAD.
17. SURESH S/O. SIDDAPPA MARADAGI,
AGE ABOUT 48 YEARS
OCC. BUSINESS, R/O. YALLAVANAGUDI,
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RSA No. 100655 of 2018
UNKAL, HUBBALLI.
18. IRAPPA S/O. SIDDAPPA MARADAGI
AGE ABOUT 46 YEARS,
OCC. BUSINESS, R/O. UNKAL,
HUBBALLI.
19. SMT. MANJAVVA W/O. GURUNATH ULLAGADDI,
AGE ABOUT 43 YEARS, OCC. HOUSE HOLD,
R/O. ADARGUNCHI, TQ. HUBBALLI.
20. SMT. SHANTAVVA W/O. VEERABHADRAPPA
ULLAGADDI,
AGE ABOUT 41 YEARS,
OCC. AGRICULTURE, R/O. UNKAL,
HUBBALLI.
... RESPONDENTS
THIS RSA IS FILED U/SEC.100 OF CPC, 1908, AGAINST
THE JUDGEMENT & DECREE DTD:27.1.2018 PASSED IN
R.A.NO.170/2010 ON THE FILE OF THE V ADDITIONAL
DISTRICT JUDGE DHARWAD, SITTING AT HUBBALLI,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DTD:20.03.2010, PASSED IN O.S. NO.63/1999
ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE
HUBLI, DISMISSING THE SUIT FILED FOR DECLARATION,
PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
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RSA No. 100655 of 2018
ORAL JUDGMENT
1. Plaintiff is before this Court, in this Regular
Second Appeal, assailing the concurrent findings of fact
recorded by the Courts below.
2. The parties herein are referred to as per their
rank before the trial Court, for the sake of convenience.
3. Suit for declaration to declare that the sale deed
executed by mother of plaintiff and defendant Nos.3 to 8 in
favour of defendant Nos.1 and 2, dated 03.01.1972 is null
and void,not binding to the interest of the plaintiff, for
partition and separate possession of 1/4th share in the suit
schedule property.
4. The suit property is R.S. No.26A/2 measuring
32 guntas situated at Unkal, Hubballi, out of which 1/4th
share i.e., 8 guntas.
5. The family genealogical tree is culled out as
under:
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MARITAMMAPPA (1962)
= Wife - Neelavva (1996)
NAGAPPA GADIGEVVA SHIDDAPPA SHANTAVVA YELLAPPA
(D-6) (D-7) (D-8) (PLTFF)
=WIFE RUDRAVVA
(D-3)
SURESH IRANNA
BASAVARAJ MUDAKAPPA
(D-4) (D-5)
6. The case of the plaintiff is that one
Maritammappa is the propositus of the family and he died
in the year 1962. He was survived by his wife Neelavva
and his four sons and one daughter, who are the plaintiff
and defendants 6 to 8. The suit property is the ancestral
joint family property of the plaintiff and defendants, that
plaintiff and defendant Nos.3 to 8 were divided, but the
suit property was kept joint and it was in joint possession
and enjoyment of the plaintiff and defendant Nos.3 to 8.
The case of the plaintiff is that, the mother of the plaintiff
i.e., Neelavva and defendant Nos.3 to 8 have executed the
sale deed in favour of defendant Nos.1 and 2 on
03.01.1972 stating that the plaintiff was minor as on that
NC: 2024:KHC-D:16945
date, but according to the plaintiff, he was major as on the
date of execution of the sale deed by the mother of the
plaintiff i.e., Neelavva and defendant Nos.3 to 8. The case
of the plaintiff is that, the mother of the plaintiff committed
fraud stating that the plaintiff is a minor and executed the
sale deed as guardian of the minor plaintiff. Further, that
the mother had no right to sell or alienate the right, title or
interest of the plaintiff's share over the suit property.
7. On notice the defendant Nos.1(b), 3 and 7(a)
filed their written statement denying the plaint averments
and contended that the suit property was purchased by
defendant Nos.1 and 2 from the mother of the plaintiff and
defendant Nos.3 to 8 through a registered sale deed on
03.01.1972 and at that time, the plaintiff who was aged
about 14 years was represented by his mother Neelavva
and the sale of the suit property was supported by the
family necessity, pursuant to which defendant Nos.1 and 2
are in possession of the suit property.
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8. Defendant Nos.3 to 7 filed written statement
along with counter claim under Order VIII Rule 6A of the
Code of Civil Procedure, 1908 (for short, 'CPC') admitting
the relationship of the plaintiff and defendants and
contended that the suit property is the joint family
property and pleaded ignorance regarding the mother of
the plaintiff selling the suit property. They contended that
they have right over the suit property and are entitled for
2/3rd share in the suit property. By way of counter claim
they also sought for declaration that the sale deed
executed by defendant Nos.3 to 8 in favour of defendant
Nos.1 and 2 on 03.01.1972 is null and void.
9. The trial Court based on the pleadings, framed
the following issues:
"1. Whether the plaintiff proves that himself and the
defendant Nos.3 to 8 are in joint possession of
the suit property, as the property was ancestral
and joint family property?
2. Whether the description of the suit property is
vague, misleading and unidentifiable?
3. Whether the suit is bad for non-joinder of
necessary parties?
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4. Whether the plaintiff proves that the sale deed
executed by defendant Nos.3 to 8 in favour of
defendant Nos.1 and 2 dated 3.1.1972 is null,
void, abinitio and not binding on the right, title
and interest of the plaintiff?
5. Whether the plaintiff is entitled for the relief of
partition and separate possession?
6. What decree order?
ADDL.ISSUES:
1. Whether the counter claim of the defendant No.3
and defendant No.7(a) is barred by time?
2. Whether the Court fee paid by the defendant No.3
and defendant No.7(a) is insufficient?
3. Whether the defendant No.3 and defendant
No.7(a) are entitled for counter claim?
4. Whether defendant No.1(B) proves that the suit of
the plaintiff is barred by time?"
10. In order to substantiate their claim the plaintiff
examined two witnesses as PW1 and PW2 and marked
documents at Exs.P1 to P11. On the other hand the
defendant No.1(b) examined himself as DW1, one witness
as DW2 and marked documents at Exs.D1 to D17.
11. The trial Court based on the pleadings, oral and
documentary evidence arrived at a conclusion that:
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(i) The plaintiff has failed to prove that himself and
defendant Nos.3 to 8 are in joint possession of the
suit property and the suit property is the ancestral
joint family property.
(ii) The plaintiff failed to prove that the sale deed
executed by mother of the plaintiff and defendant
Nos.3 to 8 in favour of defendant Nos.1 and 2 dated
03.01.1972 is null and void and not binding on his
right. The trial Court by the judgment and decree
dismissed the suit of the plaintiff filed for relief of
partition and separate possession as well as rejected
the counterclaim filed by defendant Nos.3 and 7(a).
12. Aggrieved, the plaintiff preferred appeal before
the First Appellate Court. Against the rejection of the
counterclaim, no appeal was preferred by the defendants 3
to 8.The First Appellate Court, while appreciating the entire
oral and documentary evidence, affirmed the judgment
and decree of the trial Court. Aggrieved, the plaintiff is
before this Court in this regular second appeal.
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13. Heard the learned counsel appearing for the
appellant and perused the material on record.
14. The relationship between the plaintiff and
defendant Nos. 3 to 8 is not in dispute. It is also not in
dispute that the mother of the plaintiff along with
defendant No.3 to 8 have sold the suit property in favour
of defendant Nos.1 and 2. The case of the plaintiff is that
the suit property was alienated without his consent, as on
that date he was a major, but the mother of the plaintiff
represented as a minor guardian and has sold the suit
property. In order to prove that plaintiff was a major as on
the date of the sale deed dated 3.1.1972, he has produced
Ex.P2-Certificate of birth date issued by Lamington High
School (Boys) and the other documents at Exs.P12 and
P13. Ex.P12-Certificate regarding the caste, date of birth
and date of admission of the school issued by the
Government Model Kannada Boys School. The documents
produced by the plaintiff are not public documents, but
issued by the school authorities, plaintiff has not examined
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the concerned officer who issued the certificate. The
evidence produced by the plaintiff is not sufficient enough
to substantiate his contention that plaintiff was major as
on that date. If the contention of the plaintiff is accepted
that plaintiff was a major as on execution of the sale deed,
what prevented him to challenge the sale deed, and very
unlikely that plaintiff is unaware about the sale deed as all
the family members were staying together.
15. Plaintiff did not examine himself, his wife was
examined as PW1 and brother of PW1 was examined as
PW2 who deposed about the insanity of the plaintiff and
support their contention relied upon Ex.P6 which is an
application filed to the Medical Officer, Mental Hospital,
Dharwad, which does not indicate about the nature of
insanity and the length of insanity suffered by the him. The
disability suffered by plaintiff as contended by the witness
PW2 is not established, for the Court to believe that the
plaintiff was ignorant about the execution of the sale deed.
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16. Ex.P3 sale deed discloses the signature of
defendant Nos.3 to 8 and the sale deed in which the
defendants are parties has not been challenged before any
competent Court of law. The trial Court on assessing the
entire oral and documentary evidence arrived at the
conclusion that the plaintiff has failed to establish that he
is entitled for a relief of declaration. The First Appellate
Court being the last fact finding Court has rightly
appreciated the entire oral and documentary evidence and
arrived at a conclusion that plaintiff has not made out any
case for declaring the sale deed executed by the mother of
plaintiff and defendant Nos.3 to 8 in favor of defendants 1
and 2 dated 3.1.1972 is null and void and not binding on
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 concurrent findings
of facts does not warrant any interference under Section
100 CPC and no substantial question of law arises for
consideration and this Court pass the following:
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ORDER
i) The Regular Second Appeal is hereby
dismissed.
ii) The judgment and decree of the Courts
below stands confirmed.
Sd/-
_____________________
(JUSTICE K.S.HEMALEKHA)
VNP - till para No.5;
RH - from para 6; CT: PA
