This second appeal challenges a first appellate court decree in a property suit. The court upheld the lower appellate decision, dismissing the appeal as it involved no substantial question of law. The judgment confirmed the plaintiffs' title based on oral partition.
The Regular Second Appeal was dismissed. No costs awarded.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27TH DAY OF JUNE 2013
BEFORE
THE HON’BLE MR.JUSTICE S. ABDUL NAZEER
REGULAR SECOND APPEAL NO.351/2013 (DEC/POSS)
Between:
All are r/a Nandipura, Bettadapura Hobli, Periyapatna Taluk, Mysore Dist. 571 107.
…. Appellants.
(By Sri L.Harish Kumar, Adv.)
2 And: 1 Sri N.C.Puttachanniah, S/o late Channaiah, Aged about 64 years, R/a Nandipura, Bettadapura Hobli, Periyapatna Taluk, Mysore Dist. 571 107. 2 Sri Katakaiah, S/o late Channaiah, Aged about 57 years, R/a Nandipura, Bettadapura Hobli, Periyapatna Taluk, Mysore Dist. 571 107. …. Respondents. (By Sri T.N.Raghupathy, Adv. For R1 R2 served)
This Regular Second Appeal is filed under Section 100 of CPC against the judgment and decree dated 15.9.2010 in R.A.No.77/2009 on the file of the Court of the Principal District Judge at Mysore, etc.
This Regular Second Appeal coming on for Further Hearing this day, the Court passed the following:
3
JUDGMENT
This appeal is directed against the judgment and decree in R.A.No.77/2009 dated 15.9.2010 on the file of the Principal
District Judge at Mysore whereby the judgment and decree in O.S.No.100/2007 dated 5.11.2008 on the file of the Civil Judge (Sr.Dn.) & JMFC, K.R.Nagar has been set aside and the suit has been decreed.
are the owners of item Nos.1 and 2 of the suit schedule properties
and for delivery of possession of the said property from defendant
4
Nos.2 and 3. It is their case that originally the property belonged to their father Channaiah. During his life time, Channaiah effected partition amongst his sons. Item Nos.1 and 2 were allotted to plaintiff Nos.1 and 2 respectively in that partition. Accordingly, katha was changed in their respective names in M.R.No.80-81 dated 29.1.1982. Since then, they have been in possession of the properties. However,the revenue authorities failed to carry out the entries in the revenue records in their names. It was continued in the name of Channaiah. By taking undue advantage of this entry, Channaiah along with his daughter-in-law Kalamma executed the sale deeds in respect of the suit schdule properties in favour of Patel Javaregowda on 1.1.1991. After the death of Javaregowda, his son-defendant No.1 has succeeded to the said property. He has sold item No.2 to defendant No.3. Defendant No.2 sold item No.2 in favour of defendant No.3. Item No.1 has been in possession of defendant No.2 and item No.2 has been in possession of defendant No.3. The sale deeds are not valid and inoperative.
5
have remained unrepresented. Since they did not file the written statement within the prescribed period, the trial Court has not taken the written statement on record.
noticed, the first Appellate Court has set aside the judgment and decree and decreed the suit by declaring that plaintiffs are the owners of item Nos.1 and 2 of the suit schedule property and that
6
they are entitled for possession of the said properties from the defendants. The sale deed executed by the defendants are not binding on them. They were directed to deliver possession of the suit schedule properties in favour of the plaintiffs.
plaintiffs have not sought for cancellation of the sale deed executed by Channaiah dated 1.1.1991 in favour of Patel Javaregowda. Even according to the plaintiffs own showing, the suit is barred by time. Hence, the judgment and decree of the first Appellate Court requires to be set aside and the judgment and decree of the trial Court has to be restored.
respondents submits that partition was effected between Channaiah, the father of the plaintiffs and other members of the family. Item
7
Nos.1 and 2 were allotted to plaintiff Nos.1 and 2 respectively. On the basis of the oral partition, katha of the properties were changed to their respective names on 29.1.1982. Since then, plaintiffs are the absolute owners of the property. Neither Channaiah nor his daughter-in-law have any right, title or interest whatsoever in respect of the said properties. The alienation made by Channaiah and his daughter-in-law is thus invalid as they had no right, title or interest whatsoever in respect of the said properties when they executed the sale deed. That is why they have not sought for cancellation of the said sale deed because it was not binding on them. The suit is not barred by time. It is further argued that the appeal does not involve any substantial question of law. Therefore, it has to be dismissed at this stage itself.
8
record.
plaintiffs was admittedly the owner of the properties. It is clear from the materials on record that there was an oral partition of the properties between Channaiah and his sons. Item Nos.1 and 2 had fallen to the share of the plaintiffs. On the basis of the said oral partition, katha of the property was changed in the names of the plaintiffs in M.R.No.80-81/29.1.1982. Once the property has been transferred to the names of the plaintiffs, it is not permissible for Channiah or his daughter-in-law to sell those properties in favour
of the defendants. The plaintiffs are not parties to the said sale deeds. Therefore, the suit seeking declaration of tile and recovery of possession is in order. It is not barred by time as contended. The
9
Sd/JUDGE.
BMM/-
2 issues framed by the court
Whether the second appeal involves any substantial question of law requiring interference.
Whether the sale deed executed by the father in respect of partitioned properties was valid.
2 provisions across 1 enactments
1 Sri N.J.Gowdaiah & Ors.
1 Sri N.C.Puttachanniah & Ors.
S. ABDUL NAZEER
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
