Kumar Bhimappa Vs Smt.Balavva

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NC: 2025:KHC-D:684-DB RFA No. 100210 of 2017 C/W RFA No. 100084 of 2017

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 15^TH DAY OF JANUARY, 2025 PRESENT

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THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

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AND

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THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100210 OF 2017 (PAR/POS)

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C/W

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REGULAR FIRST APPEAL NO. 100084 OF 2017

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BETWEEN:

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HANAMANTAPPA S/O BHEEMAPPA KARIKATTI AGE: MAJOR, OCC: AGRICULTURE, R/O: MUMMIGATTI, TQ & DIST: DHARWAD.

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GOPPALAPPA S/O BHEEMAPPA KARIKATTI AGE: MAJOR, OCC: AGRICULTURE, R/O: MUMMIGATTI, TQ & DIST: DHARWAD. (SINCE DECEASED BY HIS LR’S.,)

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2a. MANJUNATH S/O GOPALAPPA KARIKATTI AGE: 39 YEARS, OCC: PRIVATE SERVICE, R/O: MUMMIGATTI, TQ. DIST: DHARWAD.

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Digitally signed by MOHANKUMAR B SHELAR Location: High Court of Karnataka, Dharwad Bench

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2b. BHIMAPPA S/O GOPALAPPA KARIKATTI AGE: 32 YEARS, OCC: PRIVATE SERVICE, R/O: MUMMIGATTI, TQ. DIST: DHARWAD.

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…APPELLANTS

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(BY SRI. B.V SOMAPUR, ADV FOR APPELLANTS)

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AND:

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SMT. KENCHAVVA, W/O HARAPADAPPA KARIKATTI SINCE DECEASED R/BY HER LR’S,.

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SMT.BALAVVA W/O ISHWARAPPA HOLI AGE: 57 YEARS, OCC: HOUSEHOLD, R/O: MUMMIGATTI, TQ & DIST: DHARWAD.

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BASAPPA S/O DEVAPPA KARIKATTI AGE: 44 YEARS, OCC: AGRICULTURE, R/O: MUMMIGATTI, TQ & DIST: DHARWAD.

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SMT. FAKKIRAVVA W/O RAMAPPA NAIKAR AGE: MAJOR, OCC: HOUSEHOLD, R/O: MUMMIGATTI, TQ & DIST: DHARWAD.

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SMT. YALLAVVA W/O DOEVAPPA KARIKATTI AGE: MAJOR, OCC: HOUSEHOLD, R/O: MUMMIGATTI, TQ & DIST: DHARWAD.

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VITTAPPA S/O DEVAPPA KARIKATTI AGE: 41 YEARS, OCC: AGRICULTURE, R/O: MUMMIGATTI, TQ & DIST: DHARWAD.

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KUMAR BHIMAPPA S/O DEVAPPA KARIKATTI AGE: MAJOR, OCC: NIL, R/O: MUMMIGATTI, TQ & DIST:DHARWAD.

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KUMARI LAKSHMAVVA D/O DEVAPPA KARIKATTI, AGE: MAJOR, OCC: NIL, R/O: MUMMIGATTI, TQ & DIST:DHARWAD.

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SMT. CHANDRABAI W/O SHIVAJIRAO PAWAR SINCE DECEASED BY HER LR.

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SMT. JYOTI W/O FAKKIRAPPA CHOVAN, AGE: 75 YEARS, OCC: HOUSEHOLD, R/O: ADITYA PETROL PUMP, NAR MODERN HALL, DHARWAD, NOW AT C/O. FAKKIRAPPA B. CHOUVAN, DEEN BANDU COLONY, KARWAR ROAD, HUBBALLI.

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GANAPATI S/O KRISHNA NAIK AGE: MAJOR, OCC: AGRICULTURE, R/O: H.NO.345, LAST CROSS, NARAYANAPUR, DHARWAD.

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CHIEF ADMINISTRATIVE OFFICE, NATIONAL HIGHWAY DEVELOPMENT AUTHORITY, VIDYAGIRI, DHARWAD.

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NC: 2025:KHC-D:684-DB RFA No. 100210 of 2017 C/W RFA No. 100084 of 2017

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SPECIAL COMMISSIONER FOR LAND ACQUISITION KIDB LAKAMAHALLI, DHARWAD.

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…RESPONDENTS

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(BY SRI. B.K. MALLIGWAD, ADV FOR R1, SRI. AVINASH S. MALIPATIL, ADV FOR R2, R4 & R5, SRI. SHRIHARSH A NEELOPANT, ADV FOR R3, R6 & R7 SMT. ARCHANA A MAGADUM, ADV FOR R8, SRI. A.P MURARI, ADV FOR R9, SRI. SHIVASAI M PATIL, ADV FOR R10, SRI. SHASHANK S HEGDE, ADV FOR R11)

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THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 19.11.2016 PASSED IN O.S.NO.37/2002 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE, DHARWAD, DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

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IN RFA NO.100084 OF 2017

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BETWEEN:

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KUMAR. BHIMAPPA S/O DEVAPPA KARIKATTI AGE: 31 YEARS, OCC: NIL, R/O. MUMMIGATTI, TQ/DIST: DHARWAD-580011.

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KUMARI. LAKSHAMAVVA D/O DEVAPPA KARIKATTI, AGE: 34 YEARS, OCC: NIL, R/O. MUMMIGATTI, TQ/DIST. DHARWAD-580011.

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…APPELLANTS

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(BY SRI. SHRIHARSH A NEELOPANT, ADV FOR APPELLANTS)

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AND:

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SMT. BALAVVA W/O. ISHWARAPPA HOLI, AGE: 57 YEARS, OCC: HOUSEHOLD, R/O: MUMMIGATTI, TQ/DIST: DHARWAD-580011.

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CHIEF ADMINISTRATIVE OFFICER, NATIONAL HIGHWAY DEVELOPMENT AUTHORITY, VIDYAGIRI, DHARWAD.

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SPECIAL COMMISSIONER FOR LAND ACQUISITION KIDB LAKAMAHALLI, DHARWAD-580011.

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BASAPPA S/O. DEVAPPA KARIKATTI AGE: 44 YEARS, OCC: AGRICULTURE R/O. MUMMIGATTI,

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TQ/DIST: DHARWAD-580011.

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SMT. FAKKIRAVVA W/O RAMAPPA NAIKAR AGE: 40 YEARS, OCC: HOUSEHOLD WORK, R/O: MUMMIGATTI, TQ/DIST: DHARWAD-580011.

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SMT. YALLAVVA W/O DEVAPPA KARIKATTI AGE: 45 YEARS, OCC: HOUSEHOLD WORK, R/O: MUMMIGATTI, TQ/DIST: DHARWAD-580011.

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VITAPPA S/O DEVAPPA KARIKATTI AGE: 41 YEARS, OCC: AGRICULTURE R/O: MUMMIGATTI, TQ/DIST. DHARWAD-580011.

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HANAMANTAPPA S/O BHEEMAPPA KARIKATTI AGE: 65 YEARS, OCC: AGRICULTURE, R/O: MUMMIGATTI, TQ/DIST: DHARWAD-580011.

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GOPALAPPA S/O BHIMAPPA KARIKATTI AGE: 60 YEARS, OCC: AGRICULTURE R/O: MUMMIGATTI, TQ/DIST: DHARWAD-580011. SINCE DECEASED BY LR’S.

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9a. MANJUNATH S/O GOPALAPPA KARIKATTI AGE: 40 YEARS, OCC: AGRICULTURE, R/O: MUMMIGATTI-580011, TQ/DIST: DHARWAD.

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9b. BHIMAPPA S/O GOPALAPPA KARIKATTI AGE: 35 YEARS, OCC: AGRICULTURE, R/O: MUMMIGATTI-580011, TQ/DIST: DHARWAD.

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SMT. JYOTI W/O. FAKKIRAPPA CHOVAN AGE: 75 YEARS, OCC: HOUSEHOLD WORK, R/O. ADITYA PETROL PUMP, NEAR MODERN HALL, DHARWAD NOW AT C/O. FAKKIRAPPA B. CHOUVAN, DEEN BANDU COLONY, KARWAR ROAD, HUBBALLI, DIST. DHARWAD -580020.

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GANAPATI S/O KRISHNA NAIK AGE: YEARS, OCC: AGRICULTURE, R/O. H. NO. 345, LAST CROSS, NARAYANAPUR, DHARWAD-580008.

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…RESPONDENTS

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(BY SRI. SANTOSH B MALLIGWAD, ADV FOR R1, SRI. B.V. SOMAPUR, ADV FOR R9 (a & b), SRI. K.L PATIL, ADV FOR R10, SRI. A.P MURARI, ADV FOR R11, NOTICE TO R2 TO R8 ARE SERVED.)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 19.11.2016 PASSED IN O.S.NO.37/2002 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE, DHARWAD, DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

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THIS APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)

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These two appeals arise from the judgment and preliminary decree dated 19.11.2016 passed in O.S.No.37/2002 by the learned Second Additional Senior Civil Judge, Dharwad.

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For convenience, the parties are referred to, as per their rankings before the trial Court. The appellants in R.F.A. No.100210/2017 were defendants No.7 and 8 and respondents No.1 and 2 were the plaintiffs and the other respondents were the defendants. Defendant Nos.5 and 6 filed an appeal in RFA No.100084/2017.

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Brief facts leading rise to the filing of these appeals are as under:

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The plaintiffs filed a suit against the defendants for partition and separate possession. It is the case of the plaintiffs that, the suit schedule properties are the ancestral joint family properties of the plaintiffs and defendants No.1 to 8 which was re-granted to the family in

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the name of Bheemappa, who is the son of Gopalappa, the original protected tenant. During his lifetime, he was cultivating the suit schedule properties, on behalf of the joint family. After coming into force of the Village Office Abolition Act, the same was granted to the family of the plaintiffs and defendants No.1 to 8 as such, the same is being enjoyed. Due to the illiteracy and innocence of Harapadappa, who is the head of the plaintiffs’ branch, the name of the plaintiffs’ branch was not entered in the record of rights as an original grantee. Bheemappa being a family manager, it was granted in his name. Before regranting of the suit properties, it was in the name of the father of Bheemappa i.e., the father of said Harapadappa, and Bheemappa i.e., Gopalappa was a tenant in possession, as it was given for his village service.

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The suit properties, have been divided between Bheemappa and Harapadappa ever-since the death of Gopalappa, as they are the main coparceners, as their another brother Sanna Bheema was given in adoption to

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Garag village to Lokur family. The plaintiffs’ predecessor Harapadappa, had no male issues.

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Taking undue advantage of the nonexistence or nonappearance of the name of the plaintiffs in the record of rights, to defraud the legitimate share and rights of the plaintiffs, defendants No.1 to 8 sold 8 acres in suit schedule properties in favour of defendants No.9 and 10 and grabbed plaintiffs’ share in the suit schedule properties and the sale consideration amount. The plaintiffs came to know about the execution of the sale deeds in favour of defendants No.9 and 10, only when it was disclosed by defendants No.9 and 10. The defendants assured that, the plaintiffs will be given either their share in the land or the value of the share of the plaintiffs at a prevailing rate, and made the plaintiffs to be silent, during the lifetime of Harapadappa. The plaintiffs demanded for partition and separate possession, defendants refused to effect the partition. Hence, a cause of action arose for the

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plaintiffs to file a suit for partition and separate

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possession. Accordingly, prays to decree the suit.

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Defendant No.4 filed a written statement denying the averments made in the plaint. It is contended that, the plaintiffs are not in possession of the suit schedule properties and they are not entitled to the share in suit schedule properties. It is contended that, the Central Government acquired a certain portion of the suit properties for widening of the National Highway and the Karnataka Industrial Area Development Board (for short KIADB) already issued a notice, under the Land Acquisition Act for acquiring the suit schedule properties. The Central Government and KIADB are the necessary parties to the suit. It is contended that, the suit properties were granted in favour of Bheemappa exclusively, and the same was not granted to him as a manager of the joint family and in fact, at the time of grant, his sibling Harapadappa was not a member of the joint family, of which Bheemappa was the Karta/manager. Harpadappa, who made an attempt to

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get his name entered in the record of rights, had withdrawn his illegitimate share before the revenue authorities. The deceased Harapadappa knew very well the sale transaction in respect of the suit properties and he affixed his signature as a witness to the sale deed executed by defendants No.7 and 8 in favour of defendant No.9. It is contended that, the plaintiffs have no locus standi to file the suit. Hence, prays to dismiss the suit against defendant No.4.

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Defendants No.5 and 6 filed a written statement

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admitting the averments in the plaint and made a counter claim, and sought for share in the suit schedule properties.

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Defendants No.7 and 8 filed their written

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statement to the counter claim filed by defendants No.5 and 6, wherein, accepting the fact that the suit schedule properties are chaakari land, exclusively granted to Bheemappa Karikatti and denied the remaining contents of the counter claim. It is contended that, the alleged transaction stated in the counter claim is sham and bogus,

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and documents in respect of the suit transactions are concocted one and are not binding and hence, prayed to dismiss the counter claim filed by defendants No.5 and 6.

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Defendant No.9 filed a written statement

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denying the averments made in the plaint and contending that, the suit filed by the plaintiffs is not maintainable. It is further contended that, the suit of the plaintiffs suffers from the non-joinder of necessary parties. It is contended that, the plaintiffs have suppressed the true and correct facts by not disclosing that there was a prior partition i.e., partial or only concerning landed or house properties and they have not disclosed, whether the properties in question were left out in the earlier partition.

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It is contended that, the suit of the plaintiffs is hopelessly barred by time. It is contended that, defendant No.9 is the bonafide purchaser for value without notice. The plaintiffs have no right to claim any share in the suit schedule properties. It is contended that, defendant No.9 invested hard-earned money and purchased the suit

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schedule property with great difficulty by investing her funds. Now, the plaintiffs without having any right, title, and interest, have filed the false suit. Hence, prays to dismiss the suit against defendant No.9.

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Defendant No.10 filed a written statement denying the averments made in the plaint, reiterated the written statement filed by defendant No.9, and accordingly, prays to dismiss the suit.

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The plaintiffs filed a written statement to the counter claim of defendants No.5 and 6 and denied the contents of the counter claim. Further, contended that, the counter claim is barred by limitation as, defendants No.5 and 6 attained majority long back. Defendants No.5 and 6 have deliberately not mentioned their age in the cause title. Hence, prays to dismiss the counter claim.

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Defendant No.10 filed an additional written statement to the counter claim of defendants No.5 and 6 contending that, the counter claim is not maintainable.

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Defendant No.10 purchased 4 acres of the land out of 12 acres in Sy.No.161 of Mummigatti village under a registered sale deed dated 11.04.1997 for a valuable consideration of Rs.1,60,000/- from defendants No.1 to 6 who are the legal heirs of deceased Devappa Karikatti. The deceased Devappa had 1/3^rd share in the said properties, which comes to 4 acres. Defendants No.1 to 6, who are the legal heirs of deceased Devappa, have sold the properties to meet their legal and family necessities, under a registered sale deed dated 11.04.1997.

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Defendant No.3 and her major son and daughter i.e., defendants No.1 and 2, and defendant No. 3 was a minor guardian of defendants No.4 to 6, signed the sale deed. The validity of the sale deed was not questioned by defendants No.1 to 6. It is contended that, defendants No.4 to 6 who were minors at the time of execution of the registered sale deed in 1997, have attained the age of majority long back. They did not choose to file a counter claim within three years from the date of attaining the age

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of majority, hence, the counter claim by defendants No.5 and 6 is barred by limitation. Hence, there is no cause of action which arose to seek the counter claim. Hence, prays to dismiss the counter claim.

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The trial Court, based on the aforesaid

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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 property is joint family property of plaintiffs and defendants?

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2. Whether the defendants prove that suit property is self acquired property of Bheemappa?

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3. Whether the defendants prove that the suit is bad for non-inclusion of joint family property?

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4. Whether the suit is barred by limitation?

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5. Whether the Court fee paid is insufficient?

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6. Whether the suit is bad for non-joinder of necessary parties?

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7. Whether the defendants No.9 and 10 prove that they are the bonafide purchasers of the suit property by virtue of registered Sale Deed executed by defendants No. 1 to 8?

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8. Whether the plaintiffs are entitled for half share and separate possession in the suit properties?

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9. What order or decree?

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ADDITIONAL ISSUES DATED 2.11.2015

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1. Whether the counter claimants-plaintiffs prove that, each entitle for 1/6^th share and separate possession in the suit properties?

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2. Whether the counter claimants-plaintiffs prove that, they are entitle for mense profits from the date of suit?

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3. Whether the counter claimants-plaintiffs prove that, the transactions effected by the counter defendant No.2 to 5 in favour of defendant No.9 and 6 and 7 in favour of counter deceased defendant No.8 during their minority is void and abinitio and same is not binding on the counter claimant/plaintiffs?

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4. Whether the counter claim is time barred as claimants attained majority long back?

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ADDITIONAL ISSUE DATED 17.2.2016

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5. Whether the defendants No.7 and 8 proves that the Sale Deed in favour of defendant No.9 in respect of suit property is created by committing fraud hence it is not binding on them?

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The plaintiffs to substantiate their case, plaintiff

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No.2 was examined as PW-1 and examined 2 witnesses as PWs-2 and 3, and marked 11 documents as Ex.P.1 to P.11.

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In rebuttal, defendant No.10 was examined as DW-1. Defendant No.5 was examined as DW-2 and examined one witness as DW-3 and marked 21 documents as Exs.D.1 to D.21. The trial Court, after recording the

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evidence, considering the oral and documentary evidence, and on the assessment of oral and documentary evidence, answered issues No.1, 8 additional issue No.4 in the affirmative, issues No.2, 4, 5, 7 and additional issues No.1 to 3 and additional issue No.5 in the negative, and Issue No.9 as per the final order.

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The suit of the plaintiff was decreed with the cost. It is declared that, the plaintiff is entitled to ½ share and separate possession in the suit schedule properties. It is further declared that, defendants No. 1 to 6 together are entitled to 1/6^th share and defendants No.7 & 8 are entitled to 1/6^th share each and separate possession in the suit schedule properties. It is declared that, the purchasers i.e., defendants No.9 and 10 bearing R.S.No.161 steps into the shoes of their respective vendors i.e., defendants No.1 to 8. The counter claim of the defendants No.5 and 6 was dismissed with cost. Defendants No.5 to 8, aggrieved by the judgment and preliminary decree passed in O.S.No.37/2002, have preferred these appeals.

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Heard the learned counsel for the defendants.

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Learned counsel for defendants No.7 and 8

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submits that, Gopalappa was the Valikar of Mummigatti village. Since, he was doing Government chaakari as a Valikar, said lands were granted to him for the services rendered by him. After his demise, Harapadappa was not willing to do Valikarki. Hence, Bheemappa was doing Valikarki and doing Government chaakari. These lands were granted to him as doing Valikarki in the village. Therefore, Harapadappa was no-where concerned to the said land. The partition took place between Harapadappa and Bheemappa in respect of house property and as per the partition, in the said house, Bheemappa and Harapadappa were living separately and after division, the house bearing No.57 was divided into 57/1 and 57/2. Since, Harapadappa was not having any right and interest in the suit properties, he did not ask for any partition in these lands, therefore, Bheemappa was the full and absolute owner of the suit schedule properties and he was

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in exclusive possession and enjoyment of the land. Defendants No.1 to 8 have not sold 8 acres of land to defendant No.9. It is stated that, son in law of defendant No.9 was a Police officer at Dharwad, who committed a fraud on them and got a registered sale deed executed in favour of defendant No.9. He submits that, Court below has not properly appreciated the evidence placed on record. The trial Court committed an error in passing the impugned judgment. Hence, on these grounds prays to allow the appeal.

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Learned counsel for defendants No.5 and 6 submits that, the trial Court committed an error in dismissing the counter claim of the defendant No.5 and 6. He submits that, the natural guardian is not entitled to sell the immovable properties of a minor without the previous permission of the Court. He submits that, defendants No.5 and 6 have challenged the registered sale deed within three years from the date of knowledge. He submits that, the trial Court was not justified in decreeing the suit of the

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plaintiffs by overlooking the well-established principles of law that, the re-grant made under the Village Abolition Act has no effect on partiable estate. Hence, on these grounds, she prays to allow the appeal.

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Per contra , learned counsel for the plaintiffs submits that, the Gopalappa was the original propositus and he was the original protected tenant. After coming into force of the Village Office Abolition Act, the said properties were granted to the family of plaintiffs and defendants No.1 to 8. He submits that, due to illiteracy, the head of the plaintiffs’ branch, by name Harapadappa, his name was not entered into the record of rights of the said properties as an original grantee. Before the re-grant of the suit properties in the name of Bheemappa, the father of Bheemappa and Harapadappa, by name Gopalappa was a tenant and was in possession of suit properties, as they were given for his village service. After the demise of Gopalappa, Bheemappa and Harapadappa were coparceners along with Sanbheemappa, who had

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been given in adoption to Garag village to the Lokur family. He submits that, the suit properties are the joint family properties of the plaintiffs and defendants. Hence, he submits that, the trial Court was justified in passing the impugned judgment. He also submits that, the trial Court has rightly dismissed the counter claim of defendants No.5

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and 6. Hence, on these, prays to dismiss the appeals.

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Perused records and considered the

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submissions of the learned counsel for the parties.

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The points that arise for our consideration are as under:

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1) Whether the plaintiffs prove that suit properties are the joint family properties of plaintiffs and defendants?

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2) Whether defendants No.5 and 6 entitled for a counter claim?

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3) Whether defendant No.9 and 10 prove that they are the bonafide purchaser of the suit schedule properties by virtue of execution of registered sale deed by defendants No.1 to 8 ?

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4) Whether the defendants No.5 to 8 prove that the impugned judgment is arbitrary and erroneous?

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5) What order or decree?

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Re : Point No.1.

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It is the case of the plaintiffs that, the Government of Karnataka after coming into force of the Village Office Abolition Act, the lands were granted in favour of Gopalappa. Gopalappa was in possession of the suit properties. Gopalappa had two sons, by name, Bheemappa and Harapadappa. After the demise of Gopalappa, Bheemappa and Harapadappa have succeeded to the suit schedule properties. Gopalappa had a son by name Sanna Bheemappa, he was given in adoption to one Lokur family of Garag village.

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Plaintiff No.1 is the wife and plaintiff No.2 is the daughter of Harapadappa. Bheemappa had three sons, who are, the deceased Devappa, and defendants No. 7 and 8. Defendants No.1 to 6 are the children of Devappa.

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To establish that the suit schedule properties were granted to Gopalappa, the plaintiffs have produced the documents. Ex.P.1 is the RTC extract in respect of land

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bearing Sy.Nos.161 and 162, Ex.P.2 is copy of Mutation Register No.47. Ex.P.3 is the Survival Certificate. Ex.P.4 is a RTC extract. Ex.P.5 is the Hand Sketch Map, Exs.P.6 and 7 are the RTC extracts. Ex.P.8 is the copy of the application to Tahasildar. Exs.P.9 and 10 are the tax receipts. Ex.P.11 is the approval letter.

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From the perusal of RTC extracts produced by the plaintiffs, it is seen that, it does not reflect the name of Harapadappa in the revenue records. Further, the plaintiffs also examined two witnesses as PW-2 and PW-3, who deposed that, the suit schedule properties are the ancestral properties of the plaintiffs and defendants No.1 to 8 and Gopalappa was cultivating the suit land as a Valikar. After his demise, his sons were in the joint possession of the suit schedule properties and there is no partition effected between the plaintiffs and defendants No.1 to 8 regarding the suit schedule properties. Nothing has been elicitated, during the course of cross-

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examination of these witnesses, to disbelieve their

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evidence.

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In rebuttal, defendant No.10 was examined as DW-1 and he reiterated the written statement averments in examination-in-chief and further, to show that, the suit properties were granted in favour of Gopalappa, the defendants produced the documents. Ex.D.1, which is a copy of mutation extract i.e., ME No.582 which discloses that, the suit lands were resumed to the State Government and thereafter, the said properties were regranted in the name of Bheemappa, who is the son of Gopalappa as per Ex.D.2 i.e., M.E. No.894. After the demise of Bheemappa, the names of defendants No.7 and 8 were mutated regarding the suit schedule properties as per Ex.D.3. Ex.D.4 is the ME No.1696 i.e., after the demise of Devappa, names of defendants No.1 to 6 were mutated in their names.

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From the perusal of the records and pleadings, it is clear that, Gopalappa was cultivating the suit schedule

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properties and after the Village Office Abolition Act came into force the suit properties were re-granted in favour of Bheemappa. Though, admittedly Gopalappa was cultivating the suit schedule properties, after his demise Bheemappa and Harapadappa inherited the estate of Gopalappa. Bheemappa alone had submitted an application to enter his name in the revenue records regarding suit schedule properties, without including the name of Harapadappa. Bheemappa alone, had no right to transfer the suit schedule properties in his name. The suit properties were not granted in favour of Bheemappa exclusively, it is for the enure of the family. Further DW-1 has admitted that, originally the suit properties belonged to the Gopalappa and DW-2 in his cross-examination admitted that, the Gopalappa was the original propositus of their family. He had three sons namely Bheemappa, Sanna Bheemappa, and Harapadappa and the original propositus was doing Valikarki in the village, and the suit properties were granted to him as a chaakari lands. From the perusal of the records, it is clear that, the suit

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schedule properties are the joint family properties of the plaintiffs and defendants No.1 to 8. In view of the above discussion, we answer point No.1 in the affirmative.

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Re: Point No.2:

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Defendants No.5 and 6 sought for the counter claim, challenging the registered sale deed dated 11.04.1997 executed by defendants No. 7 & 8 in favour of defendants No.9 and 10 as null and void and not binding.

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It is contended that, at the time of execution of a registered sale deed, defendant No.4 to 6 were minors. The sale deeds executed in favour of defendants No.9 and 10 are not binding on the share of defendants No.5 and 6.

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It is also contended that, the mother, the natural guardian, without seeking the permission of the Court, cannot alienate the suit schedule properties. Admittedly, the sale deed was executed on 11.04.1997 for the valuable consideration of Rs.1,60,000/-. Defendants No.1 to 3 were majors as on the date of execution of the sale deed and defendant No.3 acted as a minor guardian

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of defendants No.4 to 6, and signed the registered sale deed. Admittedly, defendants No.4 to 6 were minors at the time of execution of the registered sale deed, in 1997. Defendants No.5 and 6 purposely have not shown their age in the cause title. If, defendants No.5 and 6 have disclosed their age, it goes against them, on the ground that, defendants No.5 and 6 did not choose to challenge the registered sale deed, within three years from the date of attaining the age of majority. Admittedly, defendant No.5 produced the school records marked at Ex.D.12, which discloses that, defendant No.5 was born on 01.03.1986, has attained the age of majority on 20.09.2004 and defendant No.6 has produced the election identity card at Ex. P.13, which discloses her age as on 01.02.2002 as 23 years and suit was filed on 11.02.2002.

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The defendant No.5 and 6 filed a counter claim on 03.09.2015. The counter claim of defendants No.5 and 6 is barred by limitation, as per Article 60 of the Limitation Act, which provides limitation for filing the suit for setting

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aside the transfer of property made by the guardian i.e., within three years of attaining the majority.

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Admittedly, defendants No.5 was minor, as on the date of filing of the suit i.e., in the year 2002 and defendants No.5 and 6 did not choose to file a counter claim within three years from the date of attaining the majority. The trial Court, has rightly held that, there is no cause of action to the counter claim and the counter claim

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is barred by the limitation and further, defendants No.5 and 6 are not in possession of the suit schedule properties, as the possession of the suit schedule properties was delivered in favour of the purchasers. In view of the above discussion, defendants No.5 and 6 are not entitled to the relief claimed in the counter claim. In view of the above discussion, we answer the point No.2 in the negative.

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Re: point No.3.

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Defendants No.9 and 10 have purchased the suit schedule properties under a registered sale deed executed by defendants No.1 to 8. Defendant No.9 has not

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entered the witness box. His power of attorney was examined as DW-3 and he has reiterated the written statement averments in the examination-in-chief. The power of attorney has no personal knowledge regarding the transaction between the parties. The Hon’ble Apex Court in the case of Janki Vashdeo Bhojwani and

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another Vs. Indusind Bank Ltd., and others reported

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in AIR 2005 SC 439 held that:

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Order III, Rules 1 and 2, CPC, empowers the holder of power of attorney to “act” on behalf of the principal. In our view the word “acts” employed in Order III, Rules 1 and 2, CPC, confines only in respect of “acts” done by the power of attorney holder in exercise of power granted by the instrument. The term “acts” would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some “acts” in pursuance to power to attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be crossexamined.

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From the perusal of the evidence of DW-3, it

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shows that DW-3 has no personal knowledge about the

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nature of the transaction between defendants No.7 & 8, and 9. Defendant No.9 was the proper person to depose regarding the sale transaction entered into between defendants No.7 and 8, and 9.

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Admittedly, as observed in point No.1 that, the suit schedule properties are the joint family properties of the plaintiffs and defendants, and no partition was effected in between the plaintiffs and defendants No.1 to 8. The defendants No.1 to 8 have no exclusive right to sell the suit properties in favour of defendants No.9 and 10. The transaction between defendants No. 1 to 8 and the deceased defendants No.9 and 10 are not binding on the plaintiffs’ share. The defendants No.9 and 10 without verifying the records, have purchased the suit schedule properties. Thus, defendants No.9 and 10 are not the bonafide purchasers. The trial Court, considering the evidence of DW-1 to DW-3, has rightly observed that, the contention of defendants No.9 and 10 that, they are bonafide purchasers, is not sustainable.

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As per Section 55 of the Transfer of Property

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Act, it is the right and responsibility of the sellers and buyers of the immovable property. The buyer is entitled, whether the ownership of the property has passed to the vendor, to the benefit of any improvement or increase in the value of the property. Admittedly, in the instant case defendants No.9 and 10, without verifying the records, purchased the properties. Hence, they are not the bonafide purchasers. Defendants No.9 and 10 have stepped into the shoes of defendants No. 1 to 8 . They are entitled to the share, to the extent of defendants No. 1 to 8 . The trial Court, has protected the interest of defendants No.9 and 10 in the impugned judgment. In view of the above discussion, we answer point No.3 in the negative.

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Re-point No.4:

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The trial Court, considering the entire evidence placed on record, has rightly recorded a finding that, the Gopalappa was the protected tenant. The Land was granted in favour of him and subsequently, land was

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resumed by the Government and thereafter, it was regranted in favour of Bheemappa for the benefit of the family, and not in his individual capacity.

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After the demise of Gopalappa, Harapadappa and Bheemappa have succeeded to the suit properties. Admittedly, there is no partition effected between Harapadappa and Bheemappa. The Bheemappa taking undue advantage of the illiteracy of the plaintiffs, got entered his name in the revenue records and sold the suit schedule properties in favour of defendants No.9 and 10. Defendants No.1 to 8 have no exclusive right to alienate the suit schedule properties in favour of defendants No.9 and 10. The sale deed executed by defendants No.1 to 8 in favour of defendants No.9 and 10 is not binding on the shares of plaintiffs. The trial Court, has rightly passed the impugned judgment. We do not find any reason to disagree with the impugned judgment of the trial Court. Accordingly, the trial Court was justified in passing the

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