Karnataka High Court
Huttavva @ Renavva W/O Kamanna Budihal vs Basavaraj S/O Yamanappa Kempanal on 17 February, 2025
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RFA No. 100362 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 17TH DAY OF FEBRUARY, 2025
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE UMESH M ADIGA
REGULAR FIRST APPEAL NO. 100362 OF 2020
(PAR/POS)
BETWEEN:
1. HUTTAVVA @ RENAVVA W/O KAMANNA BUDIHAL
AGE: 31 YEARS, OCC: AGRICULTURE,
R/O: S.B. YARAGOPPA-587201,
TQ: BADAMI, DIST: BAGALKOTE.
2. JAYASHREE W/O RANGAPPA KALAMANI
AGE: 29 YEARS, OCC: AGRICULTURE,
R/O: S.B. YARAGOPPA-587201,
TQ: BADAMI, DIST: BAGALKOTE.
Digitally signed by
V N BADIGER
Location: HIGH
3. YALLAVVA W/O MOUNESH KAMBALI
COURT OF
KARNATAKA
Date: 2025.02.20
10:49:47 +0530
AGE: 22 YEARS, OCC: AGRICULTURE,
R/O: BACHINGUDDA-587201,
TQ: BADAMI, DIST: BAGALKOTE.
4. MALLAVVA W/O SANJEEV KAMATAR,
AGE: 25 YEARS, OCC: AGRICULTURE,
R/O: KADLIKOPPA-582207,
TQ: NARAGUND, DIST: GADAG.
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RFA No. 100362 of 2020
5. PRABHULING S/O MAILARAPPA MADDI
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O: KERUR-587206, TQ: HUNAGUND,
DIST: BAGALKOTE.
6. KRISHNA S/O PRABHU MADDI
AGE: 20 YEARS, OCC: STUDENT,
R/O: KERUR-587206,
TQ: HUNAGUND, DIST: BAGALKOTE.
7. REKHA D/O PRABHU MADDI
AGE: 16 YEARS,
SINCE MINOR REPRESENTED BY
HER NEXT FRIEND/MINOR GUARDIAN
PRABHULING S/O MAILARAPPA MADDI,
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O: KERUR-587206,
TQ: HUNAGUND, DIST: BAGALKOT.
8. CHAITRA D/O BASAVARAJ KEMPANAL
AGE: 17 YEARS,
SINCE MINOR REPRESENTED BY
HER NEXT FRIEND/MINOR GUARDIAN
PRABHULING S/O MAILARAPPA MADDI,
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O: KERUR-587206,
TQ: HUNAGUND, DIST: BAGALKOT.
9. GANESH S/O BASAVARAJ KEMPANAL
AGE: 7 YEARS, OCC: STUDENT,
SINCE MINOR REPRESENTED BY
HER NEXT FRIEND/MINOR GUARDIAN
PRABHULING S/O MAILARAPPA MADDI,
AGE: 41 YEARS, OCC: AGRICULTURE,
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RFA No. 100362 of 2020
R/O: KERUR-587206,
TQ: HUNAGUND, DIST: BAGALKOTE.
...APPELLANTS
(BY SRI. C.S. SHETTAR, ADVOCATE)
AND:
1 . BASAVARAJ S/O YAMANPPA KEMPANAL
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O: JIGERI,
TQ: RON-582209, DIST: GADAG.
2 . SHOBHA W/O MALLIKARJUN AVARI
AGE: 34 YEARS, OCC: AGRICULTURE,
R/O: CHIKKAMYAGERI-583206,
TQ: YALABURGA, DIST: KOPPAL.
...RESPONDENTS
(NOTICE TO R1 AND R2 SERVED AND UNREPRESENTED)
THIS RFA FILED UNDER SECTION 96 OF THE CPC.,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE IN
O.S.NO.75/2019 DATED: 28.01.2020 IN SO FAR AS REJECTION
OF CLAIM OF THE PLAINTIFFS/APPELLANTS OVER SUIT (II)
PROPERTY, PASSED BY THE LEARNED SENIOR CIVIL JUDGE
AND JMFC, RON AND ETC.,
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 29.01.2025, THIS DAY, UMESH M ADIGA, J.,
DELIVERED THE FOLLOWING:
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RFA No. 100362 of 2020
CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE UMESH M ADIGA
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA)
The plaintiffs No.1 to 9 of OS No.75/2019 on the file of
Senior Civil Judge and JMFC., Court, Ron have filed this
appeal challenging the judgment and decree dated
28.01.2020 passed by the said Court. Appellants-plaintiffs
have filed the OS No.75/2019 for partition and separate
possession. The trial Court partly decreed the suit. Being
aggrieved by the same, plaintiffs preferred this appeal.
2. We refer the parties as per their ranking before
the trial Court.
3. It is the case of the plaintiffs that one Yamanappa
was the propositus of the family and he died during the year
1999 leaving behind, his wife Sharanavva who died on
03.12.2017 and a son by name Basavaraj (defendant No.1)
and five daughters by name Shavantravva alias Renavva,
Huttavva alias Renavva, Jayashree, Yallavva and Mallavva
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(plaintiffs). His eldest daughter Shavantravva alias Renavva
died leaving behind her husband Prabhulinga and two
children i.e. Krishna and Rekha (Plaintiffs No.5 to 7). Son of
Yamanappa that is defendant No.1 has two children by name
Chaitra and Ganesha (Plaintiffs No.8 and 9).
4. It is further contended that Yamanappa was
owner of the suit properties and after his death, his wife and
children succeeded to the suit properties and they are joint
family properties. They are in joint possession and
enjoyment of the suit properties. Daughters of Yamanappa
are married and residing in their respective husband's
houses. Taking undue advantage of the absence of the
plaintiffs in their native place, defendant No.2 has been
interfering in peaceful possession and enjoyment of the suit
properties. On enquiry, she contended that she had
purchased the suit properties from mother of the plaintiffs
and defendant No.1. Thereafter, plaintiffs obtained the
revenue records and found that their mother
Smt.Sharanavva as well as defendant No.1 executed a sale
deed in the name of defendant No.2, in respect of
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Sy.No.79/2 of Jigari village, totally measuring 8 acres 15
guntas including 2 acres pot kharab.
5. It is further contended by the plaintiffs that
defendant No.1 addicted to bad vices and criminal activities.
He was arrested and detained in the custody. Plaintiffs learnt
that defendant No.2 taking undue advantage of the situation
pursued the said Basavaraj to sign on a document with
misrepresentation that she would make arrangements for
releasing him from the custody. The said Basavaraj
believing the words of defendant No.2 had signed on the
documents. From such signed papers defendant No.2 created
alleged sale deed as if it was executed by Basavaraj as well
as Smt.Sharanavva. Smt.Sharanavva never told plaintiffs
that she sold the said property in favour of defendant No.2.
Therefore sale deed dated 24.05.2006 was obtained by
defendant No.2 by playing fraud and misrepresentation on
defendant No.1 as well as their mother Smt.Sharanavva.
6. Both the suit properties are joint family
properties. Sharanavva or defendant No.1 were not absolute
owners of the said properties. They had no right to sell said
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property in favour of defendant No.2. The said sale deed will
not bind the rights of the plaintiffs. With these reasons,
plaintiffs prayed for partition and separate possession of
their 1/6th share each in the suit schedule property and also
declare that the sale deed executed by the Sharanavva and
defendant No.1 in favour of defendant No.2 was got
executed by playing fraud on them and it will not bind rights
of the plaintiffs and consequently grant of permanent
injunction restraining the defendants from interfering in the
peaceful possession and enjoyment of the suit schedule
property in survey No.79/2.
7. Before the trial Court, both the defendants did
not appear and they were placed exparte. Plaintiffs to prove
their case examined plaintiff no.1 as PW.1 and got marked
documents as Exs.P1 to P6 and closed their evidence.
8. The learned trial Judge after hearing the
arguments of plaintiffs-appellants and on going through the
documents, held that property No.1 i.e. land bearing
Re.Sy.No.80/2 is a joint family property and plaintiffs and
defendant No.1 are entitled for share in the said property.
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Trial court held that Sy.No.79/2 is not joint family property.
Hence rejected reliefs sought in respect of said property.
Being aggrieved by the same, plaintiffs preferred this appeal.
9. Before this Court also, respondents have not
appeared.
10. We have heard the arguments of learned
advocate for plaintiffs.
The learned counsel for the plaintiffs submit that
plaintiffs in the pleading as well as in the evidence have
consistently contended that suit schedule properties are joint
family properties and the said properties are belonging to
propositus of the family by name Yamanappa Kempanal and
after his death his wife, son and daughters succeeded to the
said property by inheritance. Hence, Sharanavva or
Basavaraj were not the absolute owners of Sy.No.79/2. Prior
to filing of the suit, defendant No.2 started to interfere in
peaceful possession and enjoyment of the survey No.79/2 of
the suit schedule property. On enquiry with defendant No.2
plaintiffs came to know that she is claiming right on the basis
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of a sale deed said to be executed by Smt.Sharanavva as
well as Basavaraj. Both were not absolute owner of suit
property and had no right to sell the land bearing
Sy.No.79/2. On further enquiry they learnt that by playing
fraud on Sharanavva and Basavaraj, defendant No.2
obtained their signatures and created the alleged sale deed.
Therefore, the said sale deed do not bind the rights of the
appellants-plaintiffs.
11. The learned advocate for plaintiff further
contended that respondents were exparte and contentions of
appellants-plaintiffs were not at all disputed by the
defendant No.2. The trial Court without considering these
facts and properly appreciating evidence and materials held
that Smt.Sharanavva as well as Basavaraj were absolute
owners of the said survey No.79/2 and they had authority to
execute the sale deed. The trial Court also held that the
claim of the plaintiffs is barred by time since the sale deed
was executed during the year 2006 and it was not
challenged by either Sharanavva or defendant No.1 or
plaintiffs. The plaintiffs have no knowledge of execution of
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the said sale deed, since plaintiffs i.e., daughters of
Yamanappa have been residing in their respective husband's
house. The trial Court has not considered this fact and
erroneously rejected the claim of plaintiffs to grant share in
survey No.79/2. Therefore, prayed to set aside the said
findings of the trial Court and hold that survey No.79/2 is
also joint family property and grant the relief in favour of the
plaintiffs. Hence, prayed to allow the appeal.
12. Following points emerges for our determination:
1. Whether the learned trial Judge is justified in not
holding that Suit property bearing R.S.No.79/2 of
Jigari village of Gajendragad taluk is the joint family
property?
2. What order?
13. We answer the said point No.1 in the negative for
the following reasons:
It is the settled principal of law that whether defendants
appear and contest their case before the court or not but
burden is on the plaintiff to prove their contentions to grant
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decree. Merely defendants are remained absent or not filed
written statement does not mean that suit shall be decreed.
14. In this case defendants did not appear before trial
court. Hence plaint averments were not denied.
15. The only question to be determined is; Whether
Sy.No.79/2 of Jigari village of Gajendragad taluk is a joint
family property?
Plaintiffs in the pleadings as well as in the evidence of
PW-1 consistently contended that it was a joint family property
and after the death of propositus of the family-Yamanappa, his
wife and children have succeeded to the said property. To
prove the said contention, appellants-plaintiffs have produced
RTC of survey No.79/2 of the year 2019-2020, at Ex.P-2. The
said RTC is standing in the name of defendant No.2 both in
column No.9 as well as column No.12. In column No.10, it is
mentioned that name of defendant No.2 was mutated vide sale
deed dated 23.08.2006. Plaintiffs have produced mutation No.2
dated 23.08.2006 at exhibit P3 and it shows that both
Sharanavva as well as defendant No.1 have executed the sale
deed in favour of defendant No.2 and by virtue of the said sale
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deed, mutation entry was changed in the name of defendant
No.2. Above said both exhibits P2 and P3 nowhere discloses
that suit schedule properties bearing survey No.79/2 was a
joint family property or it was standing in the name of
Yamanappa till his death. No documents produced to prove
that any point of time was standing in the name of Yamanappa.
Details of acquisition of said land by the Yamanppa is also not
furnished and no documents produced to prove that
Yamanappa acquired said land.
16. The plaintiffs produced certified copy of the sale
deed executed by Sharanavva and defendant No.1 in favour of
the defendant No.2 at Ex.P-4. It is dated 24.05.2006.
Contents of the said document shows that both the Sharanavva
and defendant No.1 mentioned in the said sale deed that "they
were absolute owners of the property and members of their
family had no right over the said property" Both of them sold
the said property for Rs.2,94,000/- to defendant No.2. It is
registered sale deed. Photos of Sharanavva and defendant
No.1 is reflected in the said document. They were identified by
witnesses, infront of sub- registrar. Plaintiffs have not disputed
their photos in Ex.P.4. Therefore their contention that when
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defendant No.1 was in jail, defendant No.2 obtained his
signature on a document by misrepresenting him that she
would release him from jail are not believable.
17. Sale deed was executed at an undisputed point of
time and about 10 years prior to the filing of the suit.
Nowhere, in the said document, it is mentioned that the
property was earlier belonged to Yamanappa and after his
death they succeeded to the said property.
18. Plaintiffs contended that the said sale deed was
obtained by playing fraud and misrepresentation. According to
the averments in the plaint, plaintiffs have no idea about
execution of the sale deed. Sale deed was executed by
Smt.Sharanavva as well as defendant No.1 on 24.05.2006
Smt.Sharanavva survived till 2017. At no point of time, she did
challenge the said sale deed. Defendant No.1 also did not
challenge the same till this day. It is also not the case of the
plaintiffs that on enquiry with defendant No.1, he told them
about these facts. Defendant No.1 did not appear in this case
and supported case of plaintiffs. Therefore, the said averments
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made by the plaintiffs in their pleadings as well as in the
evidence is not believable.
19. Ex.P-4 is registered sale deed and was executed on
24.05.2006 for valuable consideration in favour of defendant
No.2. It is stated in the said document that possession was
delivered infavor of defendant No.2. Said facts are not
disputed by executant of the document. Hence, contentions of
plaintiffs that they have been in possession of suit land is also
not believable.
20. Learned trial Judge has considered all these facts
and rightly rejected the claim of plaintiffs on the ground that
they were unable to prove that it is a joint family property. On
re-appreciation of evidence and materials, we do not find any
reasons to interfere in the said findings. In our view, plaintiffs
failed to prove and establish that survey No.79/2 of Jigari
village is belonging to the family of the plaintiffs and defendant
No.1. Sharanavva and defendant No.1 being absolute owners of
the said property have executed Sale deed. Hence it cannot be
invalidated. Plaintiffs have no right to claim share in the said
property. It is a collusive suit between plaintiffs and defendant
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No. 1 to deny the rights of defendant No.2. Hence the trial
judge rightly dismissed the claim of plaintiff in respect of
Sy.No.79/2.
21. For the aforesaid discussions, we pass the
following:
ORDER
Appeal is dismissed. No order as to costs.
Judgment and decree passed in OS No.75/2019
dated 28.01.2020 by the Senior Civil Judge and
JMFC., Ron is confirmed.
Send back the trial Court records along with
copy of this judgment to the trial court.
Draw decree accordingly.
Sd/-
(ASHOK S. KINAGI)
JUDGE
Sd/-
(UMESH M ADIGA)
JUDGE
HMB
