Karnataka High Court
Shri. Shashikant S/O. Shivanagouda ... vs Smt. Kamalabai Shivagouda Patil on 1 February, 2025
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RSA No. 100160 of 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 1ST DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100160 OF 2018 (-)
BETWEEN:
1. SRI. SHASHIKANT S/O. SHIVANAGOUDA PATIL,
(SINCE DECEASED BY HIS LRS.)
1A). SMT. ARUN W/O. SHASHIKANT PATIL,
AGE: 68 YEARS, OCC: AGRICULTURE,
R/O. BASAVESHWAR NAGAR,
PATIL MALA, CHIKKODI.
1B). SRI. DILIP S/O. SHASHIKANT PATIL,
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O. BASAVESHWAR NAGAR,
Digitally
signed by V
PATIL MALA, CHIKKODI.
N BADIGER
VN
Location:
High Court of
...APPELLANTS
Karnataka,
BADIGER Dharwad
Bench
Date:
(BY SRI V.M. SHEELAVANT,
2025.02.05
15:16:06
+0530 SRI M.L. VANTI, AND
SRI ROHIT L. SHEELAVANT, ADVOCATES FOR
A1(A) & A1(B)
AND:
1. SMT. KAMALABAI SHIVAGOUDA PATIL,
(SINCE DECEASED BY HIS LRS.)
2. SMT. SHAILAJA BASAGOUDA PATIL,
AGE: 76 YEARS, OCC: HOUSEHOLD,
R/O. AMMANAGI, TAL: HUKKERI,
DIST: BELAGAVI.
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RSA No. 100160 of 2018
(SINCE DECEASED BY HER LRS.)
2A. SMT MADHURI W/O BABASAHEB PATIL,
AGE: 60 YEARS, OCC: HOUSEHOLD WORK,
R/O. AVARANAL, POST: DUNDAGE- 416501,
TQ. GADHINGLAJ, DIST. KOLHAPUR,
MAHARASHTRA.
2B. SRI. MOHAN S/O BASAGOUDA PATIL,
AGE. 55 YEARS, OCC. AGRICULTURE,
R/O. AMMANGI VILLAGE-591236,
TQ. HUKKERI, DIST. BELAGAVI.
2C. SRI. MANOJ S/O. BASAGOUDA PATIL,
AGE. 50 YEARS, OCC. AGRICULTURE,
R/O. AMMANGI VILLAGE- 591236,
TQ. HUKKERI, DIST. BELAGAVI.
2D. SMT. PADMAJA W/O MAHESH YASHWANT,
AGE. 48 YEARS, OCC. HOUSEHOLD WORK,
R/O. NEAR CIVIL HOSPITAL,
NIDASOSHI GATE, NIDASOSHI- 591225,
TQ. HUKKERI, DIST. BELAGAVI.
3. SMT. SHOBHA GURGOUDA PATIL,
AGE. 72 YEARS, OCC. HOUSEHOLD WORK,
R/O. CCB NO. 71, SHAHU NAGAR,
KANGRALI ROAD, BELAGAVI.
4. SMT. SAROJINI YASHWANT SANGPA,
(SINCE DECEASED BY HER LRS)
4A). SHRI. YASHWANT
S/O. TATYASAHEB SANGPAL,
AGE: 66 YEARS, OCC: PENSIONER,
R/O. NEAR ONSHETTI PARK,
NIPPANI, TAL:CHIKODI,
DIST: BELAGAVI.
4B). SNEHA D/O. YASHWANT SANGPAL,
AGE: 25 YEARS, OCC: HOUSEHOLD,
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RSA No. 100160 of 2018
R/O. NEAR ONSHETTI PARK,
NIPPANI, TAL:CHIKODI,
DIST: BELAGAVI.
5. SMT. SHASHIKALA BABASAHEB JUGALE,
AGE: 57 YEARS, OCC: HOUSEHOLD,
R/O. FLAT NO.9, SUSNE
CO-OPERATIVE HOUSING SOCIETY,
B.M -166, MIDC SHAHU NAGAR,
CHINCHWAD, PUNE -9.
6. SHRI. MILIND SHIVAPUTRA DOLLI,
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O. SAI TOWER, CHENNAMMA NAGAR,
BELAGAVI.
7. SHRI. RAVICHANDRASHEKHAR DOLLI,
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O. SAI TOWER, CHENNAMMA NAGAR,
BELAGAVI.
...RESPONDENTS
(BY SRI MRUTYUNJAYA TATA BANGI, ADVOCATE FOR R6 & R7,
R1 IS DECEASED,
NOTICE TO R2(A), R3, R4(A), R4(B) & R5 ARE
SERVED & UNREPRESENTED.
NOTICE TO R2(B) & R2(C) ARE HELD SUFFICIENT)
THIS RSA FILED U/SEC.100 OF CPC, 1908, AGAINST THE
JUDGEMENT & DECREE PASSED BY THE CIVIL JUDGE (SR. DN)
CHIKKODI IN O.S.NO. 60/2009 DATED 31.01.2015 AND
JUDGMENT AND DECREE PASSED BY THE VII ADDL. DISTRICT
AND SESSIONS JUDGE BELAGAVI, SITTING AT CHIKKODI IN
R.A. NO. 59/2015 DATED 31.01.2018 MAY KINDLY BE SET
ASIDE AND THE SUIT OF PLAINTIFF BE DECREED BY HOLDING
THAT PLAINTIFF HAS PREFERENTIAL RIGHT TO PURCHASE THE
SUIT PROPERTY AND THEREBY RESPONDENT NO.6&7 BE
DIRECTED TO RE-EXECUTE THE SALE DEED IN FAVOUR OF THE
PLAINTIFFS IN RESPECT OF JOINT HALF SHARE
PURCHASED/COVERED AND REGISTERED ON SALE DEED
DATED 24.07.2008 IN THE INTEREST OF JUSTICE AND EQUITY.
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RSA No. 100160 of 2018
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE E.S.INDIRESH)
1. This appeal is filed by plaintiffs challenging the
judgment and decree dated 31.01.2018 passed in
R.A.No.59/2015 on the file of the VII Additional District
and Sessions Judge, Belagavi (sitting at Chikkodi),
confirming the judgment and decree dated 31.01.2015
passed in O.S.No.60/2009 on the file of the Senior Civil
Judge, Chikkodi dismissing the suit of the plaintiff.
2. For the sake of convenience, the parties in this
appeal shall be referred to in terms of their status and
ranking before the Trial Court.
3. The plaint averments are that the suit schedule
properties are the ancestral properties of the plaintiffs and
defendants No.1 to 5. It is stated that the original
propositus Shivagouda died during 1976 leaving behind his
wife (Kamalabai - defendant No.1), Shailaja (defendant
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No.2), Shobha (defendant No.3), Sarojini (defendant
No.4), Shashikala (defendant no.5) and late Shashikant
(husband of plaintiff No.1(A) and father of plaintiff
No.1(B). It is further stated in the plaint that there was
an oral agreement between the plaintiffs and defendants
No.1 to 5 in respect of the suit schedule properties,
wherein it is stated that if the suit schedule properties are
to be alienated, under such circumstance, the plaintiff
being a co-parcenor is having preferential right in respect
of half share of the joint family properties and the said
agreement was reduced into writing on 10.02.2004 by
defendant No.1 in favour of the plaintiff.
4. It is also stated that, despite the said
agreement provides for preferential right in favour of the
plaintiff, however, defendants No.1 to 5 sold portion of the
schedule property to defendants No.6 and 7 as per the
registered sale deed dated 24.07.2008 and being
aggrieved by the same, the plaintiff has filed suit in
O.S.No.60/2009 before the Trial Court, challenging the
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registered sale dated 24.07.2008 executed by defendants
No.1 to 5 in favour of defendants No.6 and 7.
5. After service of summons, the defendants
entered appearance, however, defendants No.1, 6 and 7
have filed written statement and contested the suit.
Defendant No.3 has adopted the written statement of
defendant No.1. It is the case of defendant No.1 that the
schedule properties belong to joint family of plaintiffs and
defendants No.1 to 5, however, disputes execution of the
registered sale deed in favour of defendants No.6 and 7.
Defendants No.6 and 7 have filed written statement and
denied the averments made in the plaint. It is the specific
case of defendants No.6 and 7 that the plaintiffs have
made a false claim against the defendants and denied the
execution of the agreement dated 10.02.2004. It is stated
that defendants No.6 and 7 had purchased the suit
schedule properties as per registered sale deed dated
24.07.2008 based on the revenue records and as such
sought for dismissal of the suit.
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6. The Trial Court based on pleadings on record,
has formulated issues and additional issues for its
consideration.
7. In order to establish the case, plaintiffs have
examined three witnesses as PW.1 to PW.3 and got
marked 45 documents as Exs.P.1 to P.45. On the other
hand, defendants have examined three witnesses as DW.1
to DW.3 and produced 12 documents as Exs.D.1 to D.12
8. The Trial Court, after considering the material
on record, by its judgment and decree dated 31.01.2015
dismissed the suit of the plaintiffs and being aggrieved by
the same, the plaintiffs have preferred Regular Appeal in
R.A.No.59/2015 on the file of First Appellate Court and
said appeal was resisted by the defendants. The First
Appellate Court after re-appreciating the facts on record,
by its judgment and decree dated 31.01.2018 dismissed
the appeal and confirmed the judgment and decree passed
by the Trial Court in O.S.No.60/2009.
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9. Being aggrieved by the same, the plaintiffs -
appellants have preferred this Regular Second Appeal
under Section 100 of CPC.
10. This Court vide order dated 20.11.2023
formulated the following substantial questions of law:
"i. Whether the Courts below were justified in coming to
the conclusion that there was an oral partition based
on the pleadings of defendant Nos.6 & 7 without
there being any supporting material or any cogent
material that there was an oral partition in the joint
family property of the appellants and defendant Nos.
1 to 5?
ii. Whether the Courts below were justified in dismissing
the suit of the plaintiff seeking right of pre-emption
being the class-I heirs? &
iii. Whether the judgment and decree of the Courts
below suffers perversity and illegality and warranting
interference?"
11. I have heard Sri.V.M.Sheelavant, learned
counsel for appellants No.1(A) and 1(B) and
Sri.Mrutyunjaya Tata Bangi, learned counsel appearing for
respondents No.6 and 7.
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12. It is contended by the learned counsel for the
appellants that both the Courts below have committed an
error in considering the fact that the suit schedule
properties are the joint family properties of the parties and
the oral partition alleged to have been pleaded by
defendants No.6 and 7 has not been proved and that apart
the finding recorded by the Trial Court on issue No.2 is
incorrect and accordingly sought for interference of this
Court. It is the categorical argument of the learned
counsel for the appellants that defendants No.6 and 7,
though got registered sale deed on 24.07.2008, however,
they were not put into possession and therefore the
finding recorded by both Courts below requires to be
interfered with.
13. Nextly, the submission of the learned counsel
appearing for the appellants that Section 97 of the
Limitation Act, 1963 to be imported for answering the
question of law and therefore sought for interference of
this Court.
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14. Per contra, learned counsel appearing for
respondent No.6 and 7, (defendants No.6 and 7)
contended that both the Courts below having taken note of
the fact that the agreement dated 10.02.2004 is a sham
document and cannot be a basis to grant relief to the
plaintiffs and that apart as per Section 97 of the Limitation
Act, the suit ought to have been filed within one year from
the date of the execution of the registered sale deed dated
24.07.2008 and therefore, sought to justify the impugned
judgment and decree passed by the Courts below.
15. In the light of the submissions made by the
learned counsel appearing for parties, it is not in dispute
that the original propositus Shivagouda Patil died leaving
behind the legal representatives namely (Kamalabai -
defendant No.1), Shailaja (defendant No.2), Shobha
(defendant No.3), Sarojini (defendant No.4), Shashikala
(defendant No.5) and late Shashikant (husband of plaintiff
No.1A and father of plaintiff No.1B. It is the case of the
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plaintiffs that as per Ex.P.9 agreement dated 10.02.2006
between the plaintiff and defendant No.1, defendant No.1
had preferential right in the event of any alienation in
respect of the suit schedule properties.
16. Having taken note of finding recorded by the
Trial Court on issue No.3, I am of the view that the Trial
Court after considering the material on record and taking
into consideration the fact that the suit schedule
properties are the joint family properties, so also, the
share of the parties, rightly negatived the contention of
the plaintiffs holding that the plaintiffs have no preferential
right insofar as the suit schedule properties are concerned.
17. It is also to be noted that there is no partition in
the joint family properties and the plaintiffs and
defendants No.1 to 5, as per Ex.P.40 gave a report to the
revenue authorities to register the names in the suit
schedule properties and pursuant to the same registered
sale dated 24.07.2008 has been executed by defendant
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No.1 to 5 in favour of defendants No.6 and 7. It is also to
be noted that Section 97 of the Limitation Act provides for
enforcement of right of pre-emption and same has to be
made within one year from the date of knowledge or from
the date of divesting of the properties in question. Taking
into consideration as registered sale deed as per Ex.D.4
was executed on 24.07.2008 and the recitals in the sale
deed reveals that the possession of the property has been
handed over to defendants No.6 and 7 and the plaintiffs
were well aware about the same and as such the suit is
filed beyond one year and therefore the suit itself is not
maintainable and liable to be rejected on the ground of
limitation.
18. Taking into consideration the evidence on
record where the Ex.P.9 - unregistered document, which
does not confer any right in respect of the executants of
the document and also taking into consideration defendant
No.2 to 5 are also entitled for share in the suit schedule
properties, I am of the view that both the Courts below
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were justified in dismissing the suit of the plaintiffs
seeking right of pre-emption being a class-I heirs.
19. In that of the mater, the substantial questions
of law framed above favour defendants No.6 and 7 and
there is no perversity in the judgment and decree passed
by the Courts below and same required to be confirmed.
20. Hence, the appeal is dismissed as devoid of
merits.
Sd/-
(E.S.INDIRESH)
JUDGE
SH
