Karnataka High Court
Sri. Ajaya D K vs Sri K S Dushyanthraj on 14 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2025:KHC:46928
RSA No. 149 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.149 OF 2025 (PAR)
BETWEEN:
1. SRI. AJAYA D.K.,
5S/O K.B. DUSHYANTHRAJ
AGED ABOUT 27 YEARS
RESIDING AT NO.2345
2 STAGE, 4TH MAIN
NITTUVALLI NEW EXTENSION
DAVANAGERE CITY-577001
DAVANAGERE DISTRICT.
...APPELLANT
(BY SRI. UMESH MOOLIMANI, ADVOCATE FOR
SRI. S.V. PRAKASH, ADVOCATE)
AND:
Digitally signed
by DEVIKA M 1. SRI. K.S. DUSHYANTHRAJ
S/O SOMASHEKHARAPPA
Location: HIGH
COURT OF AGED ABOUT 60 YEARS
KARNATAKA
2. SRI. K. BHEEMAPPA
S/O K. SHIVALINGAPPA
AGED ABOUT 73 YEARS
AGRICULTURIST
THE RESPONDENTS 1 AND 2 ARE
RESIDENTS OF
SHIRAMAGONDANAHALLI VILLAGE
DAVANAGERE TALUK
DAVANAGERE DISTRICT-577005.
-2-
NC: 2025:KHC:46928
RSA No. 149 of 2025
HC-KAR
3. SMT. GIRIJAMMA
W/O MURIGENDRAPPA MAHALINGAPPARA
AGED ABOUT 63 YEARS
R/O KANDAGAL VILLAGE
DAVANAGERE TALUK-577514
DAVANAGERE DISTRICT.
4. KIRAN KUMAR D.K.,
AGED ABOUT 33 YEARS
R/O SHIRAMAGONDANAHALLI VILLAGE
DAVANAGERE TALUK-577005
DAVANAGERE DISTRICT
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 05.09.2024
PASSED IN R.A.NO158/2023 ON THE FILE OF THE III
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, DEVANAGERE,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 12.06.2023 PASSED IN O.S.NO.25/2012
ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC,
DAVANAGERE.
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
1. This matter is listed for admission. Heard the
learned counsel for the appellant.
2. This second appeal is filed against the
concurrent finding. The factual matrix of case of the
plaintiff before the Trial Court claiming to be the son of 1st
NC: 2025:KHC:46928
HC-KAR
defendant that he is under the care and custody of his
mother Smt.Manjula. The suit property fell to the share of
the 1st defendant in a family partition and thereafter, the
Khata of the suit property was also changed in the name
of the 1st defendant. The suit schedule property is a joint
family property. Further, pleaded that the plaintiff and his
mother Manjula had filed a petition seeking maintenance
under Section 125 of Cr.PC and the said petition was
allowed and granted maintenance of Rs.500/- and
Rs.1,000/- in favour of the mother of the plaintiff and
plaintiff on 01.06.2011. The defendant in order to avoid
right of maintenance only he had created a sale deed in
the year 1999 and also contended that a Panchayath was
held in the year 2003 and it was only a nominal sale deed
and not the sale. When the demand was made to share
the property, he did not agree to demand and hence
without any other alternative relief, he has filed the suit
for the relief of partition and also contend that the sale
made is not binding. The defendant No.1 appeared and
NC: 2025:KHC:46928
HC-KAR
filed a written statement contending that suit is barred by
limitation and admitted the relationship and defendant
No.1 already married Smt.Premleela in the year 1993 itself
and in the said wedlock, 4th defendant is born. It is
contended that Manjula led a happy marital life and as the
1st defendant had age old mother, Manjula was not ready
to look after his mother and Panchayath was held on
05.01.2003 in the presence of Shivacharya Swamiji of
Sanehalli Matha and ended in divorce of defendant No.1
and Manjula, then 1st defendant filed a petition for
Constitution of Conjugal Rights in M.C.No.112/2009 on the
file of the Family Court, Davanagere and Smt.Manjula
refused to come and join the company of 1st defendant
and he withdrew the petition. It is also his contention that
1st defendant in order to meet the expenses of the
education of his children and also to improve the maize
business, sold suit property to his uncle K.Bheemappa for
sale consideration amount of Rs.76,000/- on 24.11.1999.
It is also his contention that in view of the sale deed
NC: 2025:KHC:46928
HC-KAR
executed by the 1st defendant, 2nd defendant was in
peaceful and enjoyment of the suit property till
29.09.2009 and thereafter, 2nd defendant executed the
sale deed in favour of 3rd defendant. It is further
contended that the plaintiff and the other son of 1st
defendant Premakiran were also parties to the sale deed
dated 24.11.1999 and they were represented by their
father and the 1st defendant as natural guardian on behalf
of the minor. The defendant No.2 having entered
appearance and he also filed separate written statement
re-iterating the averments of the written statement of the
1st defendant. The defendant No.3 also filed separate
written statement, prior to the marriage, the 1st defendant
was already married to Smt.Premleela on 25.02.1993 and
in the said wedlock, 4th defendant is born and similar set
of facts are pleaded by the 3rd defendant also.
3. The Trial Court having considered the pleadings
of both plaintiff and defendants, framed the issues. In
view of the defence of the 2nd defendant that he is a
NC: 2025:KHC:46928
HC-KAR
bonafide purchaser, he sold the suit schedule property to
3rd defendant and in lieu of the said defence, plaintiff also
pleaded that the said sale deed dated 24.11.1999 is
nominal sale deed executed in favour of 2nd defendant.
The Trial Court having assessed both oral and
documentary evidence did not accept the case of the
plaintiff and comes to the conclusion that 2nd defendant
was a bonafide purchaser. He also inturn sold the property
long back in the year 2009 and also taken note of
admission on the part of D.W.1 though he pleaded that
already executed the sale deed, but he says in his
evidence that it was only a security document and the
same is discussed in paragraph No.27 and also in
paragraph No.41 taken note of sale was also made on
behalf of the minors as well as other family members and
hence, dismissed the suit.
4. Being aggrieved by the said judgment and
decree, an appeal is filed in R.A.No.158/2023. The First
Appellate Court having considered the grounds urged in
NC: 2025:KHC:46928
HC-KAR
the appeal memo, framed the point for consideration
whether the Trial Court has committed an error in
concluding that suit schedule property is not a joint family
property of plaintiff and first defendant by answering Issue
No.1 and also additional Issue No.1 together and whether
the Trial Court committed a glaring error in concluding
that sale dated 24.11.1999 executed by the first
defendant in favour of second defendant to meet his legal
necessity and whether the defendant No.2 and 3 are the
bonafide purchasers for the valuable consideration and
whether the plaintiff is entitled for partition and separate
possession.
5. The Appellate Court having re-assessed the
material available on record, comes to the conclusion that
Trial Court has not committed any error in appreciating
the material on record and also taken note of P.W.1 in his
cross-examination categorically admitted that he sold the
property in favour of second defendant to meet the
expenditure towards the health of his second wife,
NC: 2025:KHC:46928
HC-KAR
education of his son and towards development of the
property and there is no any pleadings in the written
statement regarding incurring expenditure towards the
health and also improvement of his business and for
purpose of children education is also taken note of and the
sale is for the legal necessity. In paragraph No.37 to 43 of
the judgment, in detail discussed that sale was made for
the benefit of the family and hence, answered all the
points as negative.
6. Being aggrieved by the concurrent finding,
present second appeal is filed before this Court and the
main contention of the counsel appearing for the appellant
that as on the date of sale of the property, the plaintiff
was 2 years old and Appellate Court also not exercising its
powers under Order 41 Rule 31 of CPC and both Courts
failed to appreciate the evidence available on record,
particularly Ex.P.12 by defendant No.1 in favour of 2nd
defendant and the same is not for legal necessity, but,
Court comes to the conclusion that it is for legal necessity
NC: 2025:KHC:46928
HC-KAR
and hence, this Court has to admit and frame substantive
question of law.
7. Having heard the learned counsel for the
appellant and also the reasoning particularly taking note of
the pleadings of the plaintiff, it is very clear that property
was sold in the year 1999 itself and suit is filed in the year
2012. The counsel appearing for the appellant would
vehemently contend that immediately after attaining the
majority only, suit is filed. The fact that records available
on record discloses that there is a dispute between the
husband and wife and also maintenance petition was filed
and maintenance was also ordered in favour of the plaintiff
as well as his mother and parties are having the
knowledge about the sale of the property and apart from
that though D.W.1 contend that document of sale deed is
only a security document and hence, it is clear that in one
breath says that the property was sold for the legal
necessity and also received the sale consideration of
Rs.76,000/- in the year 1999 itself. Apart from that sale
- 10 -
NC: 2025:KHC:46928
HC-KAR
deed document Ex.P.12 clearly discloses the prerequisites
for a valid sale and he had sold the property not only on
his behalf and also the family of himself and the same is
also for legal necessity and inturn subsequently, the 2nd
defendant also sold the property in favour of the 3rd
defendant. The Trial Court having assessed the material
available on record comes to the conclusion that sale
transaction was taken place in 1999 and thereafter,
second sale was also made in the year 2009 itself in
favour of the 3rd defendant and properties are also
exchanged between the subsequent purchasers. The Trial
Court having considered the material available on record
while answering Issue No.1, comes to the conclusion that
property is not an ancestral property. When such being the
case, question of granting any share in favour of the
plaintiff also does not arise and taken note of present suit
and no issue with respect to maintainability of suit and
without seeking the relief of declaration, if there was an
issue to that effect to the above decision of the Court, it
- 11 -
NC: 2025:KHC:46928
HC-KAR
would have been comes to the rescue of plaintiff, but sale
having been made long back and also the property
belongs to the 1st defendant and inturn he sold the
property and when the material is not found before the
Court that not an ancestral property, the Trial Court rightly
dismissed the suit and the First Appellate Court also
having re-assessed the material available on record in
paragraph No.40 having taken note of the recitals of the
document Ex.P.12 comes to the conclusion that the sale is
made for the legal necessity in order to meet the expenses
of the children, for the improvement of his business and
for the purpose of education of the children and he was in
need of the money and the same is also observed in
paragraph No.39. When such being the case, I do not find
any ground to admit and frame substantive question of
law.
- 12 -
NC: 2025:KHC:46928
HC-KAR
8. In view of the discussions made above, I pass
the following:
ORDER
i) Second Appeal is dismissed.
ii) In view of dismissal of the appeal, I.As., if
any do not survive for consideration, the
same stands disposed of.
Sd/-
(H.P.SANDESH)
JUDGE
RHS
