Partly allowed

Basangouda S/O Fakkiragouda Patil v. Smt.Akkavva W/O Guragouda Patil

Karnataka HC12 Dec 2024RFA/100289/2020

Case brief

AI extract

What is this about?

First appeal against dismissal of a suit for declaration and injunction regarding coparcenary property. The High Court modified the trial court decree, holding that the appellant father holds a 1/3rd undivided share and the purchaser respondent holds a 2/3rd undecimated share derived from the daughters. The appeal is disposed of with directions for final decree proceedings.

What did the court decide?

Decree modified; Appellant declared to have 1/3rd share, Respondent 3 has 2/3rd share. Both entitled to file final decree proceedings.

Basangouda S/O Fakkiragouda Patil Vs Smt.Akkavva W/O Guragouda… — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:18115 RFA No. 100289 of 2020

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 12^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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REGULAR FIRST APPEAL NO. 100289 OF 2020 (DEC/INJ-)

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BETWEEN:

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BASANGOUDA S/O. FAKKIRAGOUDA PATIL, AGE: 77 YEARS, OCC: AGRICULTURE, RESIDING AT KASABA GOUDAR ONI, SHUKRAWARPETH, DHARWAD.

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SMT. LALITA @ CHANDRA, W/O. SHANKARAPPA KELAGERI, AGE: 32 YEARS, OCCUPATION: AGRICULTURE, RESIDING AT MOORUSAVIRMATHAD ONI, MADIHAL ROAD, DHARWAD.

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…APPELLANTS

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(BY SRI. S. N. RAJENDRA, ADVOCATE)

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Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA

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AND:

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SMT.AKKAVVA W/O. GURANAGOUDA PATIL, AGE: 51 YEARS, OCC: HOUSEHOLD, RESIDING AT DODDA ONI, HAROBELAVADI, TALUK: DHARWAD, DIST: DHARWAD.

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SMT. SUMAKKA @ UMA W/O. BASANAGOUDA PATIL, AGE: 45 YEARS, OCCUPATION: HOUSEHOLD,

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RESIDING AT C/O KUMAR KAGINELE KANTI PLOT, SHIVAGANGA NAGAR, SAUNDATTI ROAD, DHARWAD.

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HANAMANTAGOUDA S/O FAKKIRAGOUDA PATIL, AGE: 28 YEARS, OCCUPATION: AGRICULTURE, RESIDING AT GANESH NAGAR, MADIHAL, DHARWAD.

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VEERESHAGOUDA S/O. GURANAGOUDA PATIL, AGE: 30 YEARS, OCC: AGRICULTURE.

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SUNILGOUDA S/O. BASANAGOUDA PATIL, AGE: 26 YEARS, OCC: AGRICULTURE,

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BOTH ARE R/O KUMAR SHIVABASAVA BASAVARAJA KAGINELE, SHIVAGANGA NAGAR, KAMATI PLOT, NEAR MURUGHAMATA GROUND DIST: DHARWAD – 580003.

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…RESPONDENTS

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(BY SRI. ABHISHEK L. KALLED, ADVOCATE C/R3; SRI. CHETAN MUNNOLI, ADVOCATE FOR R4 AND R5; R1 AND R2 –SERVED BUT UNREPRESENTED)

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THIS RFA FILED UNDER SEC. 96 OF CPC., 1908, PRAYING TO CALL FOR THE RECORDS AND TO SET ASIDE THE JUDGMENT AND DECREE DATED 11.06.2020 ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE & CHIEF JUDICIAL MAGISTRATE AT: DHARWAD AND ALLOW THE APPEAL WITH COSTS AND DECREE THE SUIT IN FAVOUR OF PLAINTIFF, IN THE INTEREST OF JUSTICE.

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

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CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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ORAL JUDGMENT

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This appeal is against the decree for dismissal of the suit for declaration and injunction. The plaintiffs are in appeal.

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The facts pleaded in the plaint and in the written statement would disclose that Basavana Gowda and Veerana Gowda are two brothers. Said Basavana Gowda is plaintiff No.1. Plaintiff No.2 claims to be the agreement holder from plaintiff No.1. Plaintiff No.2 though was not initially a party to the proceedings was impleaded on the application filed by plaintiff No.2 on the premise that she has agreement to purchase the property from plaintiff No.1.

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The suit is filed against the daughters of the plaintiff No.1 Basavana Gowda and those daughters are arrayed as defendants No.1 and 2. Defendant No.3 is the purchaser, who is also added on the premise that he is

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interfering with the peaceful possession and enjoyment of the suit property.

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The suit is filed in respect of the property

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bearing block No.266/2 measuring 1 acre 21 guntas. Though plaintiff No.2 is impleaded during the pendency of the suit, the relief claimed by the plaintiff No.1 is not amended. The relief which was originally claimed remained as it is and in the original plaint before impleading plaintiff No.2, plaintiff claimed declaration and absolute ownership over the property and sought relief of injunction against defendants. Plaintiffs also sought declaration that the sale deed executed by defendants No.1 an 2 in favour of defendant No.3 under registered sale deed dated 03.05.2016 is not binding on the plaintiffs.

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All the defendants contested the suit. Defendants No.1 and 2 justified the sale of suit property in favour of defendant No.3. Defendant No.3 claimed exclusive ownership and possession over the suit property based on the registered sale deed dated 03.05.2016.

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The Trial Court held that the plaintiffs are not

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the absolute owners of the suit property. The Trial Court has also held that the claim that the sale deed executed by defendants No.1 and 2 in favour of defendant No.3 is not binding on the plaintiffs is not tenable and the issue is answered against the plaintiffs.

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The claim of defendant No.3 i.e., the bonafide purchaser of the suit property is also answered in the negative. Issue relating to the interference is also held against the plaintiffs and the suit is dismissed.

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It is also relevant to note certain other facts

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which are admitted by both the parties. O.S.No.58/1999 was filed by Veerana Gowda against Basavana Gowda and his two daughters namely Akkamma and Sumakka. There

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are other defendants also in the said suit. Particulars of those defendants are not be relevant for the adjudication of this case.

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The said suit was filed in respect of six properties. Sy.No.266 is relevant for adjudication of this

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case which was also one of the properties in the said suit. Initially suit was decreed granting ½ share to plaintiff Veerana Gowda and defendant No.1 Basavana Gowda in Sy.No.266. Later on an appeal filed by defendant No.1 Basavana Gowda, the appeal is allowed and the Court held that Basavana Gowda as well as Veerana Gowda are having ½ share each in Sy.No.266 as well as in Sy.No.117. That decree has attained finality. Since, the said decree is a preliminary decree for partition, final decree proceedings was initiated in FDP No.39/2016 in respect of Sy.No.117 and FDP No.40/2016 is filed in respect of Sy.No.266. FDP No. 40/2016 is withdrawn, with a prayer to include another property in FDP No.39/2016. Now it is stated that FDP No.39/2016 is also closed.

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It is also borne out from the records that property bearing Sy.No.266 measuring 1 acres 21 guntas out of 3 acre 2 guntas with a specific boundary is sold in favour of one Yellavva in 2007. Said sale deed is executed Akkamma and Sumakka who are defendants No.1 and 2 in

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this case. Said purchaser is not made party to the proceedings.

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It appears that Veerana Gowda who was declared ½ share in the aforementioned property bearing Sy.No.266 and Sy.No.117 relinquished his share in the aforementioned properties in favour of Akkamma and Sumakka and the said transaction is evidenced in ME No.3484 marked at Ex.D2. It is an admitted fact that the said relinquishment has taken place without there being any registered document. However, it is also relevant to note that Veerana Gowda has no issues. It is stated that Veerana Gowda is no more.

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Learned counsel appearing for appellant No.1/plaintiff No.1 on instructions submits that he does not claim the share relinquished by Veerana Gowda in favour of his two daughters namely Akkamma and Sumakka.

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From the aforementioned facts, what is borne out is Veerana Gowda relinquished his share in Sy.No.266

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and Sy.No.117 in favour of Akkamma and Sumakka. Admittedly, Akkamma and Sumakka apart from the property acquired from Veerana Gowda under ME No.3484 also had acquired right of share in the property of Basavana Gowda i.e., plaintiff No.1 because of the birth in the family as admittedly the properties are coparcenary properties in the hands of Basavana Gowda.

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This being the position, one more sale deed was executed by Akkamma and Sumakka in favour of defendant No.3 under registered sale deed dated 03.05.2016 which is marked at Ex.P.8 and which is under challenge before the Trial Court.

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The suit is filed on the premise that Akkamma and Sumakka having sold the property in the year 2007 could not have executed one more sale deed in favour of defendant No.3 under the registered sale deed dated 03.05.2016. It is also contended that plaintiff No.1 is having 1/3^rd undivided share and without his consent property could not have been sold.

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Learned counsel appearing for respondent No.3 would contend that Akkamma and Sumakka apart from having acquired the property from Veerana Gowda had also acquired share in the property of Basavana Gowda by reason of birth in the family. Undisputedly they would be having 2/3^rd share in the property of Basavana Gowda and entire share Veerana Gowda, thus assuming that Akkamma and Sumakka have sold share of Veerana Gowda in the year 2007, they will be having 2/3^rd share in the property of Basavana Gowda and that portion is transferred to defendant No.3 and defendant No.3 is in possession of the same. Trial Court rightly dismissed the suit.

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This Court has considered the contentions raised at the bar and perused the records. The following point would arise for consideration:

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Whether the Trial Court is justified in refusing relief of declaration and dismissing the suit where the plaintiffs have sought agreement for sale?

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It is noticed that plaintiff No.2 has come on record as plaintiff No.2 on the basis of agreement for sale executed by plaintiff No.1 and the agreement would also reveal that the possession is still with plaintiff No.1. Hence, claim of plaintiff No.2 cannot be considered in this case. Remedy available to the plaintiff No.2 is to file a suit for separate possession, if so advised in law.

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As far as the claim of plaintiff No.1 is concerned, it is the contention that the decree in RFA No.389/2000 being one for partition and his share is already declared to the extent of ½ share in both the properties, the Trial Court committed an error in dismissing the suit. Though it is true that plaintiff No.1 is awarded ½ share in RFA No.389/2000. The property being the coparcenary properties, these two daughters Akkamma and Sumakka acquire 2/3^rd undivided share by reason of birth in the family. It is also noticed that Veerana Gowda has transferred his undivided share to

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Akkamma and Sumakka. This being the position, plaintiffs

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cannot claim absolute ownership over the property.

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Though defendant No.3 claims to have

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purchased property measuring 1 acre 21 guntas from Akkamma and Sumakka, what is required to be noticed is when 1 acre 21 guntas of land in Sy.No.266 was already sold to Yellavva under registered sale deed of 2007 by Akkamma and Sumakka. Thus, defendants No.1 and 2 namely Akkamma and Sumakka did not have right over 1 acre 21 guntas which was sold in the year 2007. Thus, they could not have again sold 1 acre 21 guntas in favour of defendant No.3. But what is relevant to note is, though defendant No.2 sold 1 acre 21 guntas, in the year 2016, to defendant No.3, they had 2/3^rd undivided share in the property of Basavana Gowda which would pass on to the purchaser defendant No.3.

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The purchasers are not made parties in the suit for partition or final decree proceeding in FDP No.39/2016. It is also noticed that final decree proceedings is filed

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subsequent to the purchase of undivided share by

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purchase of property by defendant No.3.

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Under the facts and circumstances of this case, this Court is of the view that remedy for the purchaserdefendant No.3 is to file a suit for partition and separate possession for division of 2/3^rd undivided share of Akkamma and Sumakka in the property bearing Sy.No.266. As the rights of the parities are already adjudicated in this case, this Court does not deem it appropriate to direct defendant No.3 purchaser to file one more suit for partition and separate possession in any case FDP No.39/2016 is pending where the division is sought based on the decree passed in RFA No.389/2000 subsequent to the said decree the transactions have taken place as noticed above.

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In the aforementioned transaction, defendant No.3 claims to have purchased the properties from Akkamma and Sumakka. Since this Court has held that Akkamma and Sumakka will have 2/3^rd undivided share in

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the property of Basavana Gowda, defendant No.3 is permitted to participate in FDP No.39/2016 by impleading himself as a party.

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It is also required to be noticed that though Akkamma and Sumakka claim to have sold entire 1 acre 21 guntas on two occasions what is required to be noticed is Basavana Gowda had 1/3^rd undivided share in the property bearing Sy. No.266. Hence, the sale deed to the extent of share of Basavana Gowda i.e., 1/3^rd share does not bind Basavana Gowda. Basavana Gowda is also entitled to 1/3^rd share in the said property.

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As already noticed, the purchaser will have 2/3^rd share of Akkamma and Sumakka in Sy.No.266/2 measuring 1 acre 21 guntas.

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It is further stated that both the final decree proceedings are now disposed of. However, this Court has already adjudicated the rights of the purchaser namely, respondent No.3. Respondent No.3 will have 2/3^rd share in Sy.No.266/2. Respondent No.3 is permitted to file final

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decree proceeding to seek demarkation of 2/3^rd share of Akkamma and Sumakka in Sy.No.266/2. The plaintiffappellant No.1 is entitled to 1/3^rd share in Sy.No.266/2.

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Learned counsel for the appellants and the respondents jointly submit that appellants and respondents have no claim over 01 acre 21 guntas of land in Sy.No.266 sold to one Yallavva in the year 2007. Hence, the said 01 acre 21 guntas in Sy.No.266 is not the subject matter of this appeal and cannot be the subject matter of the final decree proceeding.

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With these observations, the following:

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ORDER

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i. Appeal is disposed of.

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ii. The impugned judgment and decree dated 11.06.2020 in O.S.No.242/2016 on

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the file of I Additional Senior Civil Judge, Dharwad are modified.

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iii. The suit of the plaintiff No.1 is decreed holding that plaintiff No.1 is having 1/3^rd share in the suit properties. The purchaser/respondent No.3 is having 2/3^rd share in the suit property.

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iv. Either the plaintiff No.1 or the purchaser of the property, respondent No.3 from Akkamma and Sumakka is entitled to file petition seeking final decree proceeding.

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v. No order as to costs.

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Sd/(ANANT RAMANATH HEGDE) JUDGE

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GVP,RKM CT:ANB List No.: 1 Sl No.: 33

Basangouda S/O Fakkiragouda Patil v. Smt.Akkavva W/O Guragouda Patil

Case brief

What is this about?

What did the court decide?

Basangouda S/O Fakkiragouda Patil v. Smt.Akkavva W/O Guragouda Patil

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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