Dismissed

Sri Dyavegowda v. Rajashekar

Karnataka HC27 Oct 2023RSA/300/2014

Case brief

AI extract

What is this about?

In a regular second appeal regarding a suit for partition, the High Court of Karnataka held that suit item No.5 is joint family property granted under a rehabilitation scheme, not the self-acquired property of the appellant. Consequently, the appeal was dismissed, and the lower courts' decree for partition was upheld.

What did the court decide?

The appeal was dismissed, and the judgments and decrees passed by the Courts below were confirmed.

Sri Dyavegowda Vs Rajashekar — Partition | Karnataka HC (2023)

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NC: 2023:KHC:38260 RSA No. 300 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 27^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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REGULAR SECOND APPEAL NO. 300 OF 2014 (PAR)

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BETWEEN:

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SRI DYAVEGOWDA S/O KALEGOWDA AGED ABOUT 69 YEARS R/AT GOBBALI FOREST (VILLAGE) KONANUR HOBLI, ARKALGUD TALUK HASSAN DISTRICT - 573 102

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GANGAMMA KALAPPA AGED ABOUT 74 YEARS R/AT KATTEPURA VILLAGE KONANUR HOBLI, ARKALGUD TALUK HASSAN - 573 102

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…APPELLANTS

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Digitally signed by SUNITHA GANGARAJU

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Location: High Court of Karnataka

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(BY SRI. G BALAKRISHNA SHASTRY, ADVOCATE)

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AND:

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RAJASHEKAR S/O SIDDEGOWDA AGED ABOUT 57 YEARS

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NANJAPPA S/O SIDDEGOWDA AGED ABOUT 55 YEARS

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SMT LALITHA S/O VERUPAKASH AGED ABOUT 49 YEARS

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SMT ARUNAKSHI W/O SHEKARAJ AGED ABOUT 42 YEARS

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RAVI S/O SIDDEGOWDA AGED ABOUT 33 YEARS

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RESPONDENT Nos. 1 TO 5 ARE R/AT THAMAGANAHALLI VILLAGE SHETTIHALLY POST KATTAYA HOBLI, HASSAN TALUK HASSAN DISTRICT - 573 201

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SIDDEGOWDA S/O SANNEGOWDA

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AGED ABOUT 84 YEARS

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CHANDRASHEKAR S/O SANNEGOWDA AGED ABOUT 46 YEARS

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RESPONDENT No.6 & 7 ARE R/AT THAMAGANAHALLI VILLAGE SHETTIHALLY POST KATTAYA HOBLI, HASSAN TALUK HASSAN DISTRICT - 573 291

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…RESPONDENTS

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(R1 – R5 AND R7 ARE SERVED VIDE ORDER DATED 18.02.2019 APPEAL STANDS ABATED AGAINST R6)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 21.8.2013 PASSED IN R.A.NO.89/2011 ON THE FILE OF PRINCIPAL DISTRICT JUDGE, HASSAN, DISMISSING THE APPEAL AND CONFIRMING JUDGEMENT AND DECREE DTD 27.1.2011 PASSED IN OS.NO.214/2005 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE, HASSAN.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This second appeal is filed by the appellants challenging the judgment and decree dated 21.08.2013 passed in R.A.No.89/2011 by the Principal District Judge at Hassan confirming the judgment and decree dated 27.01.2011 passed in O.S.No.214/2005 by the Additional Senior Civil Judge, Hassan.

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For the sake of convenience, parties are referred to as per their ranking before the trial Court. The appellants are the plaintiffs and respondents are the defendants.

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The brief facts leading rise to filing of this appeal are as under:

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The plaintiffs filed a suit for partition and separate possession against the defendants. It is the case of the plaintiffs that the plaintiffs and defendant No.2 are the children of defendant No.1. It is the case of the plaintiffs

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that the suit schedule properties are the joint family properties of the plaintiffs and the defendant Nos.1 and 2. Defendant No.1 is the karta of the family. There was no partition affected between the plaintiffs and the defendants. The plaintiffs requested the defendant No.1 to affect a partition. It is the case of the plaintiffs that the defendants in order to deprive the legitimate shares of the plaintiffs, have agreed to execute a registered sale deed in favour of defendant Nos.3 and 4. Accordingly, defendant No.1 executed alleged agreement of sale dated 29.02.1988 in favour of defendant Nos.3 and 4 in respect of the suit properties of item No.5. Defendant No.1 has no exclusive right over item No.5 of the suit schedule property. It is the case of the plaintiffs that item No.5 of the suit property was granted in the name of defendant No.1 as a joint family member. The said land was granted for rehabilitation purpose as the family had lost land under HRP Project at Thamaganahalli. Defendant Nos.3 and 4 are very well aware that the subject matter of the property i.e., suit item No.5 is the joint family property and it is not

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the self acquired property of defendant No.1. It is contended that the alleged transaction entered into between defendant No.1 and defendant Nos.3 and 4 is not binding on the plaintiffs. It is further contended that defendant Nos.3 and 4 do not get any right over item No.5 of the suit schedule property. It is contended that the plaintiffs being the coparceners are entitled for the share in the suit schedule properties. The plaintiffs requested the defendant No.1 to allot a share. Defendant No.1 denied to allot the share and also, he denied to effect the partition. Hence, cause of action arose for the plaintiffs to file a suit for partition and separate possession.

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4. Defendant Nos.1 and 2 filed the written

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statement admitting the relationship between the parties and also the suit schedule properties are the joint family properties of the plaintiffs and defendant Nos.1 and 2. It is also contended that there was no partition in respect of the suit schedule properties. It is contended that defendant No.1 was ready and willing to divide the

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properties, but the plaintiffs postponed the same without any valid reason. It is contended that defendant No.1 has entered into an agreement of sale deed 22.09.1988 with defendant Nos.3 and 4 in respect of item No.5 of the suit schedule property with the consent of defendant No.2 and the plaintiffs. It is also contended that item No.5 is the joint family property belongs to all the members of the plaintiffs and defendant Nos.1 and 2. It is contended that the family had lost their property for HRP project at Thamaganahalli for a rehabilitation purpose and the land was granted in the name of defendant No.1 and the plaintiffs have got a share in item No.5 of the suit schedule property. On these grounds he sought for dismissal of the suit.

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Defendant Nos.3 and 4 filed the written

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statement admitting the relationship of the plaintiffs with defendant Nos.1 and 2. It is denied that item No.5 of the suit schedule properties is the joint family property of the plaintiffs, defendant Nos.1 and 2. It is also denied that no

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partition was taken place between the plaintiffs, defendant Nos.1 and 2. It is contended that item No.5 was granted by the Government in favour of defendant No.1 and he is the absolute owner of item No.5 of the suit schedule property. It is further contended that on 29.02.1988, defendant No.1 sold item No.5 of the schedule property in favour of defendant Nos.3 and 4 and delivered the possession of item No.5 of the said suit property. Since then, defendant Nos.3 and 4 are in possession of item No.5 of the suit schedule property. It is contended that defendant No.1 filed a suit in O.S.No.7/2000 before the Civil Judge (Jr.Dn.), Arkalgud, for the relief of declaration, injunction and possession against defendants No.3 and 4. The said suit came to be dismissed vide judgment dated 23.07.2005, and against that, defendant No.1 preferred an appeal before the Civil Judge (Sr.Dn.), Holenarasipur. Hence, it is contended that the plaintiffs are not in possession of item No.5 of the suit schedule property and they have no right to claim a share in item No.5 of the suit schedule property. It is further contended that plaintiffs

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have filed the suit by colluding with defendants No.1 and 2

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in order to cause loss to defendants No.3 and 4. On these

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grounds they prayed to dismiss the suit.

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The Trial Court, on the basis of the above said

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pleadings, framed the following issues and additional issues:

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Issues :

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1. Whether the plaintiffs prove that the suit properties are available for partition between plaintiffs and defendants 1 and 2?

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1. Further prove that the sale deed between defendant No.1 and defendant 3 and 4 in respect to suit properties is not binding on their rights?

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1. Whether the plaintiffs are entitled to partition and separate possession of their 1/7^th share each?

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1. Whether they are entitled to mesne profits?

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1. What order or decree?

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Additional Issues :

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1. Whether the 3^rd and 4^th defendants prove that suit item No.5 is the self acquired property of the 1^st defendant?

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2. Whether the defendant No.1 and 2 are entitled to share in the suit properties?

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Additional Issue framed on 22.09.2010 :

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1. Whether defendants No.3 and 4 prove that they are entitled for equitable partition in the share that may be allotted to defendants No.1 and 2 and wife of defendant No.1 as sought?

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The plaintiffs in order to substantiate their case,

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plaintiff No.2 was examined himself as PW-1 and examined one witness as PW-2 and got marked 6 documents as Exs.P1 to P6. Defendant Nos.1 to 3 examined themselves as DW-1 to DW-3 and examined two witnesses as DW-4 & DW-5 and got marked 3 documents as Exs.D1 to D3. The trial Court after considering the pleadings, oral and documentary evidence of the parties, answered issue Nos.1 to 3 and additional issue No.2 and additional issue No.1 framed on 22.09.2010 in the affirmative, issue No.4 answered stating that entitle as per separate enquiry and additional issue No.1 in negative and consequently, decreed the suit of the plaintiffs. It is ordered and decreed that the plaintiffs are entitled for partition, 1/7^th share each and separate possession in the

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suit schedule properties by metes and bounds and further defendant Nos.1 and 2 are also entitle for partition and 1/7^th share in the suit properties on payment of necessary Court fee. Defendant Nos.4 and 5 aggrieved by the judgment and preliminary decree passed by the trial Court preferred an appeal in R.A.No.89/2011.

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The First Appellate Court, after hearing the

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parties, has framed the following points for consideration:

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1) Whether the 3^rd and 4^th defendants prove that suit item No.5 is the self-acquired property of the 1^st defendant and 1^st defendant is having right title and interest to execute the agreement of sale in respect of the item No.5 of the property in favour of them?

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2) Whether impugned judgment and decree passed by the Court below is proper and correct in accordance with law, which requires any interference from the hands of this Court?

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3) What order or decree?

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The First Appellate Court, on re-appreciating the

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oral and documentary evidence, answered points No.1 and

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2 in the negative and consequently dismissed the appeal,

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NC: 2023:KHC:38260 RSA No. 300 of 2014

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confirming the judgment and decree passed by the trial Court.

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The defendants No.4 and 5, aggrieved by the judgments and preliminary decree passed by the Courts below, have filed this second appeal.

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Heard the learned counsel for defendants

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No.4 and 5.

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Learned counsel for the defendants No.4 and 5 submits that defendant No.1 filed a suit in O.S.No.7/2000 against them for the relief of declaration of title, injunction and possession of the suit property. In the said suit, the trial Court has answered issue No.1 in the negative holding that defendant No.1 is not an absolute owner of the said suit schedule property. He submits that Courts below have committed an error in not considering Ex.D.3 i.e., judgment passed in O.S.No.7/2000. He further submits that defendant No.1 has executed a sale deed in favour of defendants No.3 and 4 and delivered the possession of

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item No.5 of the suit schedule property. On the strength of Ex.D2, defendants No.3 and 4 are in possession of suit item No.5 of the schedule property. He submits that defendants No.3 and 4 have proved the execution of Ex.D.2 by defendant No.1. He further submits that item No.5 of the suit schedule property is not a joint family property of plaintiffs and defendant Nos.1 and 2. It is the self-acquired property of defendant No.1. Hence, on these grounds, he submits that the judgments and decrees passed by the Courts below are arbitrary, erroneous and same is liable to be set aside. Hence, prayed to allow the appeal.

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Perused the records and considered the submissions of the learned counsel for defendants No.3 and 4.

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It is the case of the plaintiffs that, plaintiffs and defendant No.2 are the children of defendant No.1. It is the case of the plaintiffs that suit schedule properties i.e., item Nos.1 to 4 are the joint family properties of plaintiffs

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and defendants No.1 and 2. Further, it is contended that insofar as item No.5 of the suit schedule property is concerned, some of the joint family lands of the plaintiffs and defendants No.1 and 2 were submerged and item No.5 was granted in favour of defendant No.1 under rehabilitation scheme. It is contended that item No.5 of the suit schedule properties is the joint family property of the plaintiffs and defendants No.1 and 2. Defendant No.1 in order to deprive the legitimate share of the plaintiffs and in collusion with defendants No.3 and 4 executed an unregistered sale deed as per Ex.D.2. It is contended that defendant No.1 alone has no right to enter into either agreement of sale or sale deed in favour of defendants No.3 and 4. It is contended that defendants No.3 and 4 have not acquired any title under unregistered document. It is contended that plaintiffs have demanded for partition and separate possession, but the defendants denied to effect the partition.

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NC: 2023:KHC:38260 RSA No. 300 of 2014

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The plaintiffs in order to prove their case, examined plaintiff No.2 as PW.1. He has reiterated the plaint averments in the examination-in-chief and in order to prove that the suit schedule properties are ancestral and joint family properties of the plaintiffs, the defendants No.1 and 2 produced the documents where Ex.P.1 is the Genealogical tree. Exs.P.2 to 6 are RTC extracts in respect of suit schedule properties including item No.5. Item No.5 of the suit schedule properties was granted in favour of defendant No.1 from HRP Hassan, under a saguvali chit as per Ex.D.1. From the perusal of Ex.D.1, it discloses that there is a clause in Ex.D.1 that grantee should not alienate the granted land for a period of 15 years. As on the date of execution of alleged Ex.D.2 only 3 years has been completed, hence the alleged transaction is void as per Rule 9(1)(v) of Karnataka land Grant Rules, 1969 which reads as under:

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9. Conditions of grant.- (1) The grant of lands under these rules (for agricultural purposes shall be jointly in the name of husband and wife and) shall be subject to the following conditions namely.-

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(i) xxx (ii) xxx (iii) xxx (iv) xxx

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(v) for contravention of any of the above conditions the grant shall be liable to be cancelled and resumed to Government free from all encumbrances by the authority granting the land:

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Provided that before canceling the grant, the grantee is afforded with an opportunity of being heard. Provided further that where the grant has been cancelled for non-payment of upset price with a penalty of 10 percent of the upset price, within a period of 2 years after the grant if the land in question has not been disposed of otherwise.

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For contravention of any of the condition

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enumerated in Rule 9(1). The grant shall be liable to be cancelled or resumed to Government free from all encumbrances by the authority granting the land. Further, the plaintiffs in order to prove that suit schedule properties are the joint family properties, examined one witness i.e., Chandregowda, who has deposed that suit schedule

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properties are the ancestral and joint family properties of plaintiffs and defendant Nos.1 and 2 and deposed that

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NC: 2023:KHC:38260 RSA No. 300 of 2014

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there is no partition between the plaintiffs, defendant Nos.1 and 2 and defendant No.1 has no right to execute the alleged agreement / sale deed in favour of defendants No.3 and 4. Now the grievance of defendants No.3 and 4 is only in respect of item No.5 of the suit property. Though the defendants No.3 and 4 have taken a specific defence in the written statement that the suit item No.5 is the self acquired property of defendant No.1, but in support of their contention, defendant No.1 except producing saguvali chit has not produced any other records and further DW.3 has neither stated in his evidence that item No.5 of the suit schedule property is self-acquired property of defendant No.1, nor produced any documents in support of the same. Defendant No.4 has not entered into witness box. Further, from the perusal of Ex.D.2, defendants No.3 and 4 have taken a specific defence in the written statement filed in O.S.No.7/2000 filed by defendant No.1 against defendants No.3 and 4. In the said suit, the trial Court has recorded the finding that Ex.D.2 is an agreement of sale and not as a sale deed. Further, it is

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also recorded that defendants No.3 and 4 have not made any attempts to bring the suit for specific performance of contract within a period of limitation. Further, the said finding was not challenged by defendants No.3 and 4 by filing the cross-objection. From the perusal of the evidence of the parties, the trial Court has rightly recorded the finding that item No.5 of the suit schedule property was granted in favour of defendant No.1. In view of submerging the ancestral properties of plaintiffs and defendants No.1 and 2, item No.5 of the suit schedule property was granted and same is the joint family property of plaintiffs and defendants No.1 and 2. Defendant No.1 alone has no right over item No.5 of the suit schedule property. The trial Court has rightly recorded the findings against defendants No.3 and 4 and rightly decreed the suit of the plaintiffs.

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The First Appellate Court on re-appreciation of the material on record was justified in confirming the judgment and decree passed by the trial Court. Hence, I

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NC: 2023:KHC:38260 RSA No. 300 of 2014

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do not find any substantial question of law that arises for consideration in this appeal and any grounds to interfere with the impugned judgments and decrees passed by the Courts below.

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Accordingly, I proceed to pass the following:

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ORDER

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The appeal is dismissed.

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The judgments and decrees passed by the

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Courts below are hereby confirmed.

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No order as to the costs.

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SD/JUDGE

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SSB,SKS

Sri Dyavegowda v. Rajashekar

Case brief

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Sri Dyavegowda v. Rajashekar

Case brief

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