Shri. Balasab S/O Bharamu Jiragale Vs Shri. Appasab S/O Annappa Mali

THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CPC PRAYING THAT THE IMPUGNED JUDGMENT AND DECREE DATED 16.06.2023 PASSED IN O.S.NO.71/2016 BY THE LEARNED PRL. SENIOR CIVIL JUDGE, ATHANI IN DECREEING THE SAID IN ITS ENTIRETY BE KINDLY SET ASIDE, BY ALLOWING THIS APPEAL AND THEREBY DISMISSING THE SAID SUIT IN O.S.NO.71/2016 OR MODIFYING THE SAID JUDGMENT DECREE IN RESPECT OF SUIT ITEM NOS 4 AND 5 OF THE SUIT SCHEDULE PROPERTIES IN FAVOUR OF THE APPELLANT HEREIN, IN THE INTEREST OF JUSTICE AND EQUITY.

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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 S.R. KRISHNA KUMAR AND THE HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR)

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This appeal by the defendant No.4 in OS No.71/2016, directed against the impugned judgment and decree dated 16.06.2023 passed by the Principal Senior Civil Judge, Athani (for short, ‘the Trial Court’), whereby, the said suit filed by the respondent Nos.1 to 3 against the appellant/defendant No.4 and respondent Nos.4 and 5/defendant Nos.1 and 2 was decreed in favour of the plaintiffs against the defendants.

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Briefly stated, the facts giving rise to the present appeal are as under;

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The defendant No. 1-Annappa is the husband of defendant No.2-Smt. Tangewwa and have three children namely, Appasab (plaintiff No.1), Sadashiv (plaintiff No.2) and Chandrakala (plaintiff No.3-originally defendant No.3), as can be seen from the genealogy, which is as under:

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Annappa (Defendant No.1)

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= Sangawwa (Deft. No.2)

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Appasab Chandrakala Sadashiv (Plff. No.1) (Deft. No.3) (Plff. No.2)

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Initially, the plaintiff No.1 and plaintiff No.2 i.e. Appasab and Sadashiv instituted the aforesaid suit against their parents and sister Chandrakala (defendant No.3) and the appellant/defendant No.4, for partition and separate possession of their alleged share in the suit schedule properties. The suit schedule properties comprised of six (6) items of immovable properties which are described as hereunder:

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2) DESCRIPTION OF THE SUIT PROPERTIES

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Sl. No.	R.S.No.	Area A.Gs.	Assessment Rs. Ps.	Extent	Village
01	175/1+2	13-27 PK0-04	16-58	Full	Aigali
02	219/1	5-34	3-92	Full	Aigali
03	219/2	4-16	1-46	Full	Aigali
04	219/3	8-03	7-68	Full	Aigali
05	1208/2	6-22	1-12	Full	Athani
06	1209/2	3-04 PK0-05	0-51	Full	Athani

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The appellant/defendant No.4 is alienee in

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respect of item Nos.5 and 6 of the suit schedule properties and he is said to have acquired the same vide registered Sale Deed dated 10.12.2015, executed in his favour by the father/defendant No.1.

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In the first instance, Chandrakala, the daughter of Annappa and Tangewwa was arrayed as defendant No.3 and she got herself transposed as plaintiff No.3 and she supported the claim of the plaintiff Nos.1 and 2.

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It is a matter of record and an undisputed fact that the defendant Nos.1 and 2 did not file their written statement and contest the suit. It is only the appellant/defendant No.4 who claims to have acquired item Nos.5 and 6 of the suit schedule properties vide registered Sale Deed dated 04.12.2015, who is the contesting defendant only to the limited/restricted extent of item Nos.5 and 6 of the suit schedule properties. It was contended on behalf of the said defendant that there was earlier partition between the defendant No.1 and his family members and

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pursuant thereto, the defendant No.1 purchased item Nos.5 and 6 of the suit schedule properties, pursuant to which the same become his absolute, separated self-acquired properties. It was contended that since the item Nos.5 and 6 are the suit schedule properties were the separated selfacquired properties of the defendant No.1, he was entitled to sell the same in favour of the defendant No.4, who is the bona fide purchaser for value without any claim of the children of defendant No.1. It was also contended that the sale by the defendant No.1 in favour of defendant No.4 was for legal necessity and for the benefit of the estate and as such, the plaintiffs cannot claim any right over item Nos.5 and 6 of the suit schedule properties and the suit in this regard was liable to be dismissed.

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The plaintiff No.2 examined himself as PW1, but did not tender himself for cross examination. The plaintiff No.3 examined herself as PW2 and the plaintiffs got marked documentary evidence at Ex.P1 to P11 on their behalf. As stated supra, the defendant Nos.1 and 2 remained exparte

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and did not contest the suit, nor filed their written statement, and the only contesting defendant who was defendant No.4/the appellant herein was examined himself as DW1 and documentary evidence at Ex.D1 to D14 were marked on his behalf. The appellant/defendant No.4 also examined two more witnesses as DW2 and DW3.

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After hearing the appellant and the plaintiffs, the Trial Court came to the conclusion that item Nos.1 to 4 were the ancestral joint family properties in which the plaintiffs and defendant Nos.1 and 2 were entitled to 1/5^th share each in item Nos.1 to 4 of the suit schedule properties. The Trial Court also recorded a finding that defendant No.4 being purchaser of item Nos.5 and 6 of the suit schedule properties, he was neither privy nor a party to an alleged earlier partition entered into between defendant No.1 and the plaintiffs and defendant No.2 and consequently, the appellant/defendant No.4 had not established the plea of earlier/prior partition pleaded by him in his written statement. The Trial Court also took note of

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the fact that the defendant Nos.1 and 2 had remained exparte and had not contested the suit and consequently, in the absence of pleading and proof as regards the separate source of independent income of defendant No.1 to acquire item Nos.5 and 6 of the suit schedule properties coupled with the fact that item Nos.1 to 4 were undisputedly ancestral joint family properties, the defendant No.4 had failed to establish that item Nos.5 and 6 were the separate and self-acquired properties of defendant No.1. The Trial Court also recorded a finding that the appellant/defendant No.1 on whom the burden of proving that the sale was for legal necessity and benefit of the estate had failed to discharge his burden by adducing any legal or acceptable evidence. The claim of the plaintiffs for partition and separate possession of their alleged share was upheld by the Trial Court which decreed the suit in favour of the plaintiffs against the defendants.

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Aggrieved by the impugned judgment and decree

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passed by the Trial Court, the defendant No.4 is before this Court by way of the present appeal.

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Heard submissions of the learned counsels for

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the parties and perused the material on record including the

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records of the Trial Court.

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The following points would arise for our

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consideration in the present appeal;

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1) Whether the Trial Court was justified in holding that item Nos.5 and 6 of the suit schedule properties were the separate and self-acquired properties of defendant No.1?

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2) Whether the Trial Court was justified in coming to the conclusion that the plaintiffs are entitled to a share in item Nos.5 and 6 of the suit schedule properties?

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3) Whether the impugned judgment and decree passed by the Trial Court warranting interference by this Court in the present appeal?

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Since, all the three points are inter-linked, they are taken up together for consideration.

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A perusal of the material on record will indicate that the relationship between the parties is not in dispute. The defendant Nos.1 and 2 are husband and wife and they have three children viz., plaintiff Nos.1 and 2 and plaintiff No.3 (transposed defendant No.3) who are their children.

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In this context it is pertinent to note that the pleadings and evidence on record, in particular, do not impeach the oral evidence of PW2 and the documents produced by the plaintiffs at Ex.P1 to P11 will clearly indicate that item Nos.1 to 4 were the ancestral joint family properties of defendant No.1 in which the plaintiffs and defendant Nos.1 and 2 were entitled to 1/5^th share each in the properties.

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Under these circumstances, the Trial Court proceeded to answer issue Nos.1 and 2 in relation to item Nos.1 to 4 of the suit schedule properties in favour of the plaintiffs by coming to the conclusion that they are entitled

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to their respective legitimate share in the suit schedule properties. While arriving at the said conclusion, the Trial Court recorded the following findings:

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“8. ISSUES NO.1 & 2:- As these issues are inter-linked with each other, they are taken up together for common discussion in order to avoid repetition of facts.

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It is the case of the plaintiffs that the suit item Nos.1 to 4 properties are ancestral properties. The suit item Nos5 and 6 properties were purchased in the name of defendant No.1 out of the income of ancestral properties. The plaintiffs, defendants No.1 and 2 are joint family members and the are in joint possession and enjoyment of the suit properties. There was no partition by metes and bounds in respect of the suit properties. The defendant No.1 has sold the suit item Nos.5 and 6 properties to defendant No.4 without legal necessity hence, the sale deed dated 04-12-2015 is not binding on plaintiffs. On the other hand the defendant No.4 has contended that the suit item Nos.5 and 6 properties are self acquired properties of defendant No.1. The defendant No.1 has offered to sell the suit item Nos.5 and 6

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properties. The defendant No.4 has made enquiry before purchasing the properties and confirmed that the defendant No.1 is the absolute owner of the suit item Nos.5 and 6 properties. The defendant No.4 has purchased the suit item Nos.5 and 6 properties from the defendant No.1 for a consideration of Rs.12,84,000/- under the registered sale deed dated 04-12-2015 hence, he is bonafide purchaser of the said properties for valuable consideration.

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In order to prove the said facts, the plaintiff No.2 himself examined as Pw.1 and got marked 11 documents at Exs.P1 to 11. Pw.1 has not tendered for cross-examination hence, his evidence not taken into consideration.

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The plaintiff No.3 herself examined as Pw.2, she reiterated the averments of plaint in her examination in chief and identified Exs.P1 to 11. Ex.P1 to 6 are RTC extracts, Exs.P7 to 10 are mutation extracts and Ex.P11 is the certified copy of sale deed dated 04-12-2015 and registered on 10-12-2015.

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Exs.P1 to 4 reveal that the suit item Nos.1 to 4 properties are jointly standing in the names

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of plaintiffs, defendants No.1 and 2. Exs.P5 and 6 reveal that the suit item Nos.5 and 6 properties are standing in the names of defendant No.1. Ex.P7 reveals that half of the suit item Nos.1 to 4 properties were mutated in the name of defendant No.1. Ex.P8 reveals that the khata of lands bearing RS No.528/1, RS No.219/2, RS No.528/4, RS No.219/3 and RS No.174/2+1 were mutated in the name of Saidappa and Siddappa after the death of Satteppa. Ex.P9 reveals that half of the suit item Nos.1 to 4 properties were

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mutated in the name of plaintiffs No.1 and 2 as their uncle by name Mallappa is physically handicapped and unmarried person. Ex.P10 is not concerned to the suit properties. Ex.P11 reveals that the defendant No.1 has sold the suit item Nos.5 and 6 properties to defendant No.4 for a consideration of Rs.12,84,000/- and executed the alleged registered sale deed on 04-12-2015 and the same was registered on 10-12-2015.

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During the course of cross-examination of Pw.2, she admitted that she does not know the facts narrated in the plaint, she has not given information to her counsel to prepare plaint and she has not signed the plaint. It is admitted fact that the Pw.2 not supposed to give information

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to counsel to prepare the plaint and sign it because she was defendant No.3 in the suit, subsequently she herself filed an application and transposed as plaintiff No.3 in this case hence, the admission given by Pw.2 with regard to not knowing the contents of plaint and not giving information to prepare plaint as well as her sign not on the plaint noway helpful to the defendant No.4.

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Learned counsel for the defendant No.4 himself suggested to Pw.2 that the suit item Nos.1 to 4 properties were fallen to the share of defendant No.1, the defendant No.1 has purchased suit item Nos.5 and 6 properties out of the income of suit item Nos.1 to 4 properties and the same was admitted by her. Pw.2 admitted that the suit properties are self acquired properties of defendant No.1. Pw.2 further admitted that the defendant No.1 is absolute owner of the suit item Nos.5 and 6 properties accordingly mutation was effected in his name. Pw.2 pleads ignorance regarding the defendant No.4 has purchased the suit item Nos.5 and 6 properties after verifying records of the said properties. Pw.2 denied that herself, plaintiffs, defendants No.1 and 2 colluded one another and filed a false suit. Pw.2 denied that

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herself, plaintiffs No.1, 2, defendants No.1 and 2 have no rights over the suit item Nos.5 and 6 properties. Pw.2 denied that she falsely deposed that the suit item Nos.5 and 6 properties were purchased out of joint family income in the name of defendant No.1. Pw.2 denied that she falsely deposed that the defendant No.4 has not paid Rs.12,84,000/- to defendant No.1 and Ex.P11 is created document. Pw.2 further denied that she has no share in the suit item Nos.5 and 6 properties.

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On perusal of the cross-examination of Pw.2, it appears that learned counsel for the defendant No.4 himself suggested to Pw.2 that the suit item Nos.1 to 4 properties were fallen to the share of defendant No.1, the suit item Nos.5 and 6 properties were purchased out of the income of suit item Nos.1 to 4 properties. Learned counsel for defendant No.4 has not suggested to Pw.2 that there was a partition between the defendant No.1 and his family members in respect of the suit properties. It is not suggested to Pw.2 that the defendant No.1 has purchased the suit item Nos.5 and 6 properties after the partition between himself and his family members.

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The defendant No.4 has pleaded in Para

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No.12 of the written statement that the defendant No.1 is residing separately from his brothers and partition took place long back. The defendant No.1 has purchased the lands bearing RS No.1208/2 and RS No.1209/2 by his own income and the plaintiffs, defendants No.1 and 2 have no right, title or interest over the said lands. Therefore, it is clear that there was no partition between the plaintiffs, defendants No.1 and 2 in respect of the suit properties. The defendant No.4 himself stated in the written statement that the partition took place between the defendant No.1 and his brothers long back and he is residing separately. It is further clear that the defendant No.1 has no independent income except the income of suit item Nos.1 to 4 properties to purchase the suit item Nos.5 and 6 properties.

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Based on the discussion made above, I am of the view that the plaintiffs have proved that themselves, defendants No.1 and 2 are members of joint family and suit properties are joint family properties. The plaintiffs further proved that there was no partition in respect of the suit properties and they are having share in the suit properties. Accordingly, issues No.1 and 2 answered in the affirmative.”

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As can be seen from the aforesaid findings recorded by the Trial Court, the fact that the defendant No.4/appellant herein was neither a family member nor a privy or party to any of the transactions in relation to the joint family comprising of plaintiffs and defendant Nos.1 and 2, was taken note of by the Trial Court, who came to the correct conclusion that there was no partition between plaintiffs and defendant Nos.1 and 2, so as to indicate that the plaintiffs were entitled to their legitimate shares in item Nos.1 to 4 of the suit schedule properties, and accordingly, the Trial Court proceeded to upheld the claim for partition and separate possession put forth by the plaintiffs.

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In relation to item Nos.1 to 4 of the suit schedule properties, upon re-appreciation, re-consideration and reevaluation of the entire material on record, we do not find any illegality or infirmity in the impugned judgment and decree, nor can the same said to be capricious or perverse insofar as it relates to the findings recorded in respect of

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item Nos.1 to 4 of the suit schedule properties and the impugned judgment and decree in this regard deserves to be confirmed.

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Issue Nos.3 and 4 pertains to whether the defendant No.4 proves that the item Nos.5 and 6 of the suit schedule properties were the separate and self-acquired properties of defendant No.1 and as to whether the sale deed executed by defendant No.1 in favour of defendant No.2 was valid and binding to the entire extent of item Nos.5 and 6 of the suit schedule properties on the ground that they were bona fide purchasers.

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In this context, it is specifically contended by the appellant/defendant No.4 that the suit schedule item Nos.5 and 6 of the suit schedule properties were purchased by defendant No.1 out of his own income on 26.08.1998 at Ex.D1 and subsequently, sold in favour of the appellant/defendant No.4 vide registered sale deed dated 04.12.2015 at Ex.D2/Ex.P11. However, it is relevant to state that the appellant/defendant No.4 not being a family

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member as well as not a party/privy to the earlier Sale Deed dated 26.08.1998 or any of the transactions/affairs of the joint family, he clearly does not have any personal knowledge as to whether the item Nos.5 and 6 of the suit schedule properties were acquired with the aid of joint family funds or whether they were the separate and self acquired properties of defendant No.1.

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It is also significant to note that the undisputed joint family have possessed item Nos.1 to 4, which were joint family ancestral properties. So also, apart from the fact that defendant Nos.1 and 2 remained exparte and did not contest the claim of the plaintiffs in respect of any of the suit schedule properties, there is absolutely no legal or acceptable evidence either to prove an earlier partition between the plaintiffs and defendant Nos.1 and 2 or that defendant No.1 had any separate source of income so as to enable him to purchase item Nos.5 and 6 of the suit schedule properties especially when item Nos.1 to 4 were

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undisputedly joint family ancestral properties yielding income.

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Under these circumstances, we are of the view that the Trial Court is fully justified in coming to the conclusion that item Nos.5 and 6 were not the separate and self acquired properties of defendant Nos.1 and that the same were also joint family properties amenable to partition as sought for by the plaintiffs.

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Though the appellant/defendant No.4 has pleaded in his written statement that there was earlier an partition and that item Nos.5 and 6 were the separate and self acquired properties of defendant No.1, as stated supra since he was neither a family member nor a privy/party to the transactions prior to 04.12.2015, when the sale deed was executed in his favour, his ipse dixit and self-serving statement would not assist him in establishing that item Nos.5 and 6 were the separate and self-acquired properties of defendant No.1. So also, though the defendant No.4/appellant has examined DW2 and DW3 the scribe and

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attesting witnesses to Ex.D2/Ex.P11, which was the registered Sale Deed dated 04.12.2015 executed by defendant No.1 in favour of defendant No.4, their evidence would not be of any assistance to the defendant No.4/appellant to prove that item Nos.5 and 6 were either a separate or self acquired properties of defendant No.1 or whether there was a partition between plaintiffs and defendant Nos.1 and 2.

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Under these circumstances, the findings recorded by the Trial Court on issue Nos.3 and 4 were fully justified and proper based on material evidence as can be seen hereunder;

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“9. ISSUES NO.3 & 4 :- The defendant No.4 has contended that the suit item Nos.5 and 6 properties are self acquired properties of defendant No.1. The defendant No.1 is the absolute owner of the suit item Nos.5 and 6 properties. The defendant No.1 was in need of money hence, he offered to sell the suit item Nos.5 and 6 properties. The defendant No.4 has purchased the suit item Nos.5 and 6 properties from the defendant No.1 for a valuable

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consideration and he is bonafide purchaser of the same.

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In order to prove the said facts, the defendant No.4 himself examined as Dw.1. Dw.1 has reiterated the averments of written statement in his examination in chief. The defendant No.4 has examined scribe and one of the attesting witnesses to the sale deed dated 04-12-2015 as Dws.2 and 3.

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Dw.2 has stated in his evidence that as per the information given by the defendant No.1 he prepared the sale deed dated 04-12-2015, he read-over the contents of sale deed to the defendants No.1, 4 and witnesses and they put their signatures. Dw.2 further stated that the defendant No.4 has paid Rs.12,84,000/- to the defendant No.1 in his presence and witnesses. This witness identified his signature on Ex.D2.

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Dw.3 has stated in his evidence that the suit item Nos.5 and 6 properties are the self acquired properties of defendant No.1. The defendant No.1 has offered to sell the said properties to defendant No.4 for a consideration of Rs.12,84,000/-. The defendant No.1 has received Rs.12,84,000/- and executed the sale deed on 04-12-2015. The contents of sale

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deed was read-over to the defendant No.1 and witnesses. The defendant No.1 has put signature after knowing the contents of sale deed. The defendant No.4 has paid Rs.12,84,000/- to defendant No.1 and he put his thumb impression on the sale deed. The defendant No.4 is owner in possession of the suit item Nos.5 and 6 properties from the date of sale deed.

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In support of the oral evidence, Dw.1 has got marked 14 documents at Exs.D1 to 14. Ex.D1 is the certified copy of sale deed dated 26-08-1998, Ex.D2 is the original registered sale deed dated 04-12-2015, Exs.D3 to 12 are RTC extracts, Exs.D13 and 14 are mutation extracts.

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Ex.D1 reveals that the defendant No.1 has purchased the suit item Nos.5 and 6 properties from Jayaraj Annarao Jakanur for a consideration of Rs.75,000/- under the registered sale deed dated 26-10-1998. Ex.D2 reveals that the defendant No.1 has sold the suit item Nos.5 and 6 properties to defendant No.4 for a consideration of Rs.12,84,000/under the registered sale deed dated 04-12-2015 and registered on 10-12-2015. Ex.D3 reveals that the land bearing RS No.1209/2 measuring 07 acres 04 guntas situated at Athani was standing in the name of Jakanur Jayaraj Annarao. Ex.D4

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reveals that the land bearing RS No.1208/2 measuring 06 acres 22 guntas of Athani was standing in the name Jakanur Jayaraj Annarao. Exs.D5 and 6 reveal that suit item Nos.5 and 6 properties were standing in the name of defendant No.1. Exs.D7 to 12 reveal that the suit item Nos.5 and 6 properties are standing in the name of defendant No.1. Exs.D13 and 14 reveal the suit item Nos.5 and 6 properties were mutated in the name of defendant No.4.

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During the course of cross-examination of Dw.1, he admitted the relationship between the plaintiffs, defendants No.1 and 2. Dw.1 admitted that he has not produced any document to show that there was a partition between the defendant No.1 and his family members in respect of the suit item Nos.1 to 4 properties. Dw.1 pleads ignorance regarding half of the suit item Nos.1 to 4 properties were given by the brother of defendant No.1 namely Mallappa to the plaintiffs No.1 and 2. Dw.1 admitted that as per Ex.D7 half of the suit item Nos.1 to 4 properties acquired by the defendant No.1. Dw.1 further admitted that the RTC of the suit item Nos.1 to 4 properties are jointly standing in the names of plaintiffs, defendants No.1 and 2. Dw.1 further admitted that the plaintiffs No.1 and 2 have half share and defendant No.1 has remaining half

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share in the suit item Nos.1 to 4 properties. Dw.1 pleads ignorance regarding when the partition took place between the defendants No.1 and his family members. Dw.1 admitted that he has not produced RTC extract, dairy and hand sketch map to show that there was a partition between the plaintiffs, defendants No.1 and 2 in respect of the suit item Nos.1 to 4 properties. Dw.1 further admitted that the agriculture is source of income for defendants No.1 and 2. Dw.1 denied that the plaintiffs, defendants No.1 and 2 together purchased suit item Nos.5 and 6 properties in the name of defendant No.1 and they are cultivating the said properties jointly. Dw.1 admitted that he has not asked the wife and children of defendant No.1 about purchase of suit item Nos.5 and 6 properties from the defendant No.1. Dw.1 denied that the suit item Nos.5 and 6 properties were purchased in the name of defendant No.1 out of the income of suit item Nos.1 to 4 properties. Dw.1 denied that the plaintiffs and defendants No.2 have share in the suit item Nos.5 and 6 properties hence, the sale deed is not binding on them. Dw.1 admitted that the RTS proceedings held in respect of the suit item Nos.5 and 6 properties. Dw.1 denied that the Ex.D2 is created document.

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On perusal of the cross-examination of Dw.1, it appears that he has not produced any documents to show that the partition took place between the defendant No.1 and his family members in respect of the suit item Nos.1 to 4 properties. Dw.1 denied the suggestion that Ex.D2 is created document.

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During the course of cross-examination of Dw.2, he admitted that the witnesses signed to Ex.D2 are not belongs to Aigali village. He further admitted that he has not put signature by identifying the thumb impression of defendant No.1 on Ex.D2. Dw.2 denied that the defendant No.4 has not paid Rs.12,84,000/- to defendant No.1 in the presence of witnesses. Dw.2 denied that without reading the contents of Ex.D2 they obtained thumb impression of defendant No.1 on the sale deed. Dw.2 further denied that himself, defendant No.4 and witnesses colluded one another and created Ex.D2.

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During the course of cross-examination of Dw.3, he admitted that he has no house and landed properties at Aigali village. Dw.3 admitted that he has no land beside the suit properties. Dw.3 admitted that he has not participated in the sale talks of suit item Nos.5

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and 6 properties. Dw.3 admitted that suit item Nos.1 to 4 properties were acquired by the defendant No.1 through his ancestors and his occupation is agriculture. Dw.3 pleads ignorance regarding the suit item Nos.5 and 6 properties were purchased out of the income of ancestral properties. Dw.3 pleads ignorance regarding face value of the currency given to the defendant No.1 by the defendant No.4. Dw.3 denied that he falsely deposed that the defendant No.4 has paid Rs.12,84,000/- to the defendant No.1.”

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Upon re-appreciation, re-consideration and reevaluation of the entire material on record, we are of the considered opinion that the Trial Court was fully justified in coming to the conclusion that item Nos.5 and 6 were also joint family properties and that the Sale Deed dated 04.12.2015 was not binding upon the shares of the plaintiffs and consequently, the suit for partition and separate possession in respect of item Nos.5 and 6 of the suit schedule properties also liable to be decreed.

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Learned counsel for the appellant would submit that the appellant was a bona fide purchaser in respect of

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item Nos.5 and 6 of the suit schedule properties vide registered Sale Deed dated 04.12.2015 at Ex.D2/Ex.P11 prior to the suit and without notice of the alleged claim of the plaintiffs and that the right of defendant No.4 may be protected during final decree proceedings.

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In this context, it is pertinent to note that the Trial Court has recorded a finding while answering issue No.5 that the Sale Deed executed by defendant No.1 in favour of defendant No.4 in respect of item Nos.5 and 6 of the suit schedule properties was binding upon the share of the plaintiffs and defendant No.2. As noticed earlier, the suit schedule properties comprise of six (6) items of suit schedule properties and the claim of the appellant/defendant No.4 is restricted or limited only to item Nos.5 and 6 of the suit schedule properties.

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Under these circumstances, all contentions put forth by the appellant/defendant No.4 regarding adjustment of equities and allotting item Nos.5 and 6 of the suit schedule properties to the share of defendant No.1 in all the

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29 - NC: 2025:KHC-D:11916-DB RFA No. 100568 of 2023

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HC-KAR

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suit schedule properties would necessarily have to be

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worked out during the course of the final decree proceedings and necessary directions are to be issued in this regard. Therefore, the point Nos.1 to 3 raised above are answered accordingly.

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In the result, we pass the following:

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ORDER

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(i) The appeal is hereby dismissed.

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(ii) The impugned judgment and decree dated 16.06.2023 passed in OS No.71/2016 by the Principal Senior Civil Judge, Athani, is hereby confirmed.

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(iii) However, it is made clear that the claim of the appellant/defendant No.4, in respect of item Nos.5 and 6 of the suit schedule properties, to be allotted in favour of the defendant No.1, towards his share in all item Nos.1 to 6 of the suit schedule properties, is directed to be considered and adjudicate in the

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