Sri.Yamanappa S/O Irappa Khangoudar Vs Smt.Shivaleela Lw/O Basappa Jakkappannavar

SMT.SHIVALEELA W/O. BASAPPA JAKKAPPANNAVAR, AGE: 34 YEARS, OCC. HH WORK AND AGRICULTURE, R/O. SATTI, TQ. ATHANI, NOW AT POST SASALATTI, TQ. JAMAKHANDI-587301, DIST. BAGALKOTE.

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KUMAR AKASH

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S/O. BASAPPA JAKKAPPANNAVAR, AGE: 18 YEARS, OCC. NOT KNOWN, R/O. SATTI, TQ. ATHANI, NOW AT POST SASALATTI, TQ. JAMAKHANDI-587301, DIST. BAGALKOTE.

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SMT.SHOBHA

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W/O. SADASHIV AJURE, AGE ABOUT 42 YEARS, OCC. HOUSEHOLD WORK,

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R/O. BADACHI, TQ. ATHANI-591304, DIST. BELAGAVI.

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SMT.MAHANANDA W/O. KALLAPPA GUDODAGI, AGE: 38 YEARS, OCC. HOUSEWIFE, R/O. KHEMALAPUR, TQ. RAIBAG-591317, DIST. BELAGAVI.

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SMT.SUNANDA W/O. SADASHIV SANTI, AGE: 36 YEARS, OCC. HOUSEWIFE, R/O. NANDAGAON, TQ. ATHANI-591304, DIST. BELAGAVI.

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…RESPONDENTS

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(BY SRI. SHRIKANT T. PATIL, ADVOCATE FOR R1 TO R5)

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THIS RFA IS FILED UNDER SEC. 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DTD:06.12.2018 PASSED IN O.S.NO.180/2015 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, ATHANI, DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

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THIS APPEAL, 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

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ORAL JUDGMENT

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

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This appeal is filed by defendant No.4 challenging the judgment and preliminary decree dated 06.12.2018 passed in O.S. No.180 of 2015 by the learned Additional Senior Civil Judge and JMFC, Athani (for short, ‘the Trial Court’).

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For convenience, the parties are referred to based on their ranking before the Trial Court. The appellant was defendant No.4 and respondents No.1 and 2 were the plaintiffs and other respondents were defendants No.1 to 3.

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Brief facts leading raise to the filing of this appeal are as follow:

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The plaintiff filed a suit against the defendants for partition and separate possession regarding the suit schedule property. It is the case of the plaintiff that one Sri. Mallappa Bapu Jakkappanavar was the

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original propositus. He had four children, viz ., defendants No.1 to 3 are the daughters and the husband of plaintiff No.1 by name Basappa is the son.

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The said Basappa died on 04/08/2004 leaving behind the plaintiffs as his legal heirs. The original propositus died on 29.09.2012. It is stated that on 07/08/2003 the husband of plaintiff no. 1, basappa and the mother of basappa, i.e., housavva, executed a sale deed in favour of defendant no.4 without any sale consideration and the same is not supported by any family or legal necessity and for the benefit of the family. it is contended that the plaintiffs are not parties to the same and hence, the said sale deed is not binding on them. it is contended that no partition was effected between the members of the joint family and the plaintiffs are entitled to a 1/4^th legitimate share in respect of the suit schedule property. Hence, a cause of action arose for the plaintiffs to file a suit

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for partition and separate possession. Accordingly,

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prays to decree the suit.

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Defendant No.1 appeared through the counsel and filed a written statement admitting the averments made in the plaint and prays to decree the suit. It is contended that defendants No.1 to 3 never relinquished their share in favour of Basappa. Hence, prays to allot a legitimate share to defendants No.1 to 3.

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Defendant No.4 filed a written statement contending that after the death of the original propositus of the family, defendants no.1 to 3 orally relinquished their rights over the suit property in favour of their brother, Basappa and their mother, Housavva and on 7/8/2003, they have executed a sale deed in favour of defendant no.4 for value, regarding the suit schedule property. Thus, he is a bona fide purchaser

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of the suit property for value without notice. Hence,

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prays to dismiss the suit.

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The Trial Court, based on the pleadings of the parties, framed the following issues:

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ISSUES

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1) Whether the plaintiffs prove that they themselves and the Defendants No.1 to 3 are joint family members and the suit schedule property is joint family property?

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2) Whether the Plaintiffs proves that till today there was no partition in the suit schedule property by metes and bounds and the plaintiffs are having 1/4th share in the suit schedule property?

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3) Whether the Defendant no.4 proves that he is a bonafide purchaser for valuable consideration in respect of suit schedule property?

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4) Whether the defendant no.4 proves that the suit filed by the plaintiffs without proper cause of action?

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5) Whether the plaintiffs are entitled for the reliefs as sought for?

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6) What Order or Decree?

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The plaintiffs to substantiate their case, examined plaintiff No.1 as PW-1 and marked 14 documents as Exhibits P-1 to P-14.

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In rebuttal, defendant No.4 was examined as DW-1, defendant No.1, examined herself as DW-3 and examined one witness as DW-2 and marked 7 documents as Exhibits D-1 to D-7.

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The Trial Court after recording the evidence, hearing both sides and assessing the verbal and documentary evidence, decreed the suit of the plaintiffs and declared that the plaintiffs are entitled to a partition and separate possession of 1/4^th share over the suit schedule property.

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Defendant No.4, aggrieved by the judgment and decree passed in O.S. No.180 of 2015, filed this Regular First Appeal.

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Heard the learned counsel for defendant No.4 and the learned counsel for the plaintiffs.

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Learned counsel for defendant No.4 submits that defendant No.4 has taken several grounds in the written statement and led evidence to establish that he is a bona fide purchaser. He submits that the Trial Court has not assigned any reason s to hold that defendant No.4 is not a bona fide purchaser for valuable consideration. He also submits that plaintiff No.1 was examined as PW-1 and defendant No.4 was examined as DW-1 and defendant s also examined two witnesses as DW-2 and DW-3 and marked 7 documents. The Trial Court has not discussed the

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evidence of DW-1 to DW-3 in the impugned judgment. He submits that the judgment passed by

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the Trial Court is not a speaking judgment and that it is not in conformity with the provisions of Order XX Rule 5 of the Code of Civil Procedure, 1908. Hence, he submits that the matter requires fresh consideration by the Trial Court. Accordingly, he prays to allow the appeal.

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Per contra , the learned counsel for the plaintiffs supported the impugned judgment and prays to dismiss the appeal.

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Perused the records and considered the submissions

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of the learned counsel for the parties.

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The points that arise for consideration in this appeal

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are :

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1. Whether defendant No.4 proves that the impugned judgment passed by the Trial Court is not in conformity with Order XX Rule 5 of the Code of Civil Procedure, 1908?

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2) What order or decree?

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Point No.1 :

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The plaintiffs filed a suit for partition and separate possession contending that the suit schedule property is the joint family property of the plaintiffs and defendants No.1 to 3 and they are the members of a Hindu undivided joint family. It is stated that on 07/08/2003 , Basappa and Housavva, executed a sale deed in favour of defendant no.4 without any sale consideration and the same is not supported by any family or legal necessity and for the benefit of the family. It is contended that no partition was effected between the members of the joint family and the deceased Basappa and Housavva had no right to execute a registered sale deed in favour of defendant No.4 as the suit schedule property is the joint family property and no paertition was effected in the family till date. The plaintiffs have got a share in the suit schedule property.

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The plaintiffs to substantiate their case, examined plaintiff No.1 as PW-1 and got marked 14 documents as Exhibit P1 to P14. In rebuttal, defendant No.4 was examined as DW-1 and he reiterated the written statement averments in his deposition and deposed that he had purchased the suit schedule property under a registered sale deed and he is a bona fide purchaser and to prove his defence, he has examined one witness as DW-2 and marked 7 documents as Exhibits D-1 to D-7.

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From the perusal of the impugned judgment passed by the Trial Court, it is apparently clear that the reasons assigned by the Trial Court are in general expression; the Trial Court has not discussed the evidence of DWs-1 to 3 and the documents produced by the defendants. However, it has recorded a finding that the original propositus is the owner of the suit schedule property and there is no registered partition deed under the Indian Registration Act and as per

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Section 6 of the Hindu Succession Act, 1956 among

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the parties to the suit. Hence, they are entitled to a share.

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The Trial Court has not recorded any finding regarding whether defendant No.4 is a bona fide purchaser for valuable consideration or not. Hence, the judgment passed by the Trial Court is not in compliance with Order XX Rule 5 of the Civil Procedure Code.

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As per Order XX Rule 5 of the Civil Procedure Code, 1908, the Court is required to frame issues and shall state its finding or decision, with reasons thereof, upon each separate issues, unless the findings upon any one or more of the issues is sufficient for the decision of the suit.

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In the instant case, the Trial Court has framed as many as 6 issues, but it has not assigned any reasons to answer issues No.1, 2 and 5 in the affirmative and

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issues No.3 and 4 in the negative. The impugned judgment passed by the Trial Court is not a speaking judgment. Hence, on this ground alone, the impugned judgment is liable to be set aside and the matter requires fresh consideration by the Trial Court.

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In view of the above discussion, I answer point No.1

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in the affirmative.

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Point No.2 :

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In the result, I proceed to pass the following:

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ORDER

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(i) The Regular First Appeal is allowed . (ii) The impugned judgment and preliminary decree dated 06.12.2018 passed in O.S. No.180 of 2015 by the learned Senior Civil Judge and JMFC, Athani, is set aside.

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(iii) O.S. No.180 of 2015 is restored to its original file.

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(iv) The Trial Court is directed to dispose of the suit in accordance with law and in compliance with Order XX Rule 5 of the Civil Procedure Code, 1908 after assigning the reasons to each issues framed by it and pass an appropriate judgment.

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