Shri. Shashikant S/O. Shivanagouda Patil Vs Smt. Kamalabai Shivagouda Patil

2A. SMT MADHURI W/O BABASAHEB PATIL, AGE: 60 YEARS, OCC: HOUSEHOLD WORK, R/O. AVARANAL, POST: DUNDAGE- 416501, TQ. GADHINGLAJ, DIST. KOLHAPUR, MAHARASHTRA.

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2B. SRI. MOHAN S/O BASAGOUDA PATIL, AGE. 55 YEARS, OCC. AGRICULTURE, R/O. AMMANGI VILLAGE-591236, TQ. HUKKERI, DIST. BELAGAVI.

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2C. SRI. MANOJ S/O. BASAGOUDA PATIL, AGE. 50 YEARS, OCC. AGRICULTURE, R/O. AMMANGI VILLAGE- 591236, TQ. HUKKERI, DIST. BELAGAVI.

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2D. SMT. PADMAJA W/O MAHESH YASHWANT, AGE. 48 YEARS, OCC. HOUSEHOLD WORK, R/O. NEAR CIVIL HOSPITAL, NIDASOSHI GATE, NIDASOSHI- 591225, TQ. HUKKERI, DIST. BELAGAVI.

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SMT. SHOBHA GURGOUDA PATIL, AGE. 72 YEARS, OCC. HOUSEHOLD WORK, R/O. CCB NO. 71, SHAHU NAGAR, KANGRALI ROAD, BELAGAVI.

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SMT. SAROJINI YASHWANT SANGPA, (SINCE DECEASED BY HER LRS) 4A). SHRI. YASHWANT S/O. TATYASAHEB SANGPAL, AGE: 66 YEARS, OCC: PENSIONER, R/O. NEAR ONSHETTI PARK, NIPPANI, TAL:CHIKODI, DIST: BELAGAVI.

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4B). SNEHA D/O. YASHWANT SANGPAL, AGE: 25 YEARS, OCC: HOUSEHOLD,

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R/O. NEAR ONSHETTI PARK, NIPPANI, TAL:CHIKODI, DIST: BELAGAVI.

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SMT. SHASHIKALA BABASAHEB JUGALE, AGE: 57 YEARS, OCC: HOUSEHOLD, R/O. FLAT NO.9, SUSNE CO-OPERATIVE HOUSING SOCIETY, B.M -166, MIDC SHAHU NAGAR, CHINCHWAD, PUNE -9.

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SHRI. MILIND SHIVAPUTRA DOLLI, AGE: 40 YEARS, OCC: AGRICULTURE, R/O. SAI TOWER, CHENNAMMA NAGAR, BELAGAVI.

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SHRI. RAVICHANDRASHEKHAR DOLLI, AGE: 47 YEARS, OCC: AGRICULTURE, R/O. SAI TOWER, CHENNAMMA NAGAR, BELAGAVI.

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…RESPONDENTS

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(BY SRI MRUTYUNJAYA TATA BANGI, ADVOCATE FOR R6 & R7, R1 IS DECEASED,

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NOTICE TO R2(A), R3, R4(A), R4(B) & R5 ARE SERVED & UNREPRESENTED. NOTICE TO R2(B) & R2(C) ARE HELD SUFFICIENT)

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THIS RSA FILED U/SEC.100 OF CPC, 1908, AGAINST THE JUDGEMENT & DECREE PASSED BY THE CIVIL JUDGE (SR. DN) CHIKKODI IN O.S.NO. 60/2009 DATED 31.01.2015 AND JUDGMENT AND DECREE PASSED BY THE VII ADDL. DISTRICT AND SESSIONS JUDGE BELAGAVI, SITTING AT CHIKKODI IN R.A. NO. 59/2015 DATED 31.01.2018 MAY KINDLY BE SET ASIDE AND THE SUIT OF PLAINTIFF BE DECREED BY HOLDING THAT PLAINTIFF HAS PREFERENTIAL RIGHT TO PURCHASE THE SUIT PROPERTY AND THEREBY RESPONDENT NO.6&7 BE DIRECTED TO RE-EXECUTE THE SALE DEED IN FAVOUR OF THE PLAINTIFFS IN RESPECT OF JOINT HALF SHARE PURCHASED/COVERED AND REGISTERED ON SALE DEED DATED 24.07.2008 IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE E.S.INDIRESH)

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This appeal is filed by plaintiffs challenging the

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judgment and decree dated 31.01.2018 passed in R.A.No.59/2015 on the file of the VII Additional District

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and Sessions Judge, Belagavi (sitting at Chikkodi), confirming the judgment and decree dated 31.01.2015 passed in O.S.No.60/2009 on the file of the Senior Civil Judge, Chikkodi dismissing the suit of the plaintiff.

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For the sake of convenience, the parties in this

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appeal shall be referred to in terms of their status and ranking before the Trial Court.

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The plaint averments are that the suit schedule properties are the ancestral properties of the plaintiffs and defendants No.1 to 5. It is stated that the original propositus Shivagouda died during 1976 leaving behind his wife (Kamalabai – defendant No.1), Shailaja (defendant

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No.2), Shobha (defendant No.3), Sarojini (defendant No.4), Shashikala (defendant no.5) and late Shashikant (husband of plaintiff No.1(A) and father of plaintiff No.1(B). It is further stated in the plaint that there was an oral agreement between the plaintiffs and defendants No.1 to 5 in respect of the suit schedule properties, wherein it is stated that if the suit schedule properties are to be alienated, under such circumstance, the plaintiff being a co-parcenor is having preferential right in respect of half share of the joint family properties and the said agreement was reduced into writing on 10.02.2004 by defendant No.1 in favour of the plaintiff.

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It is also stated that, despite the said agreement provides for preferential right in favour of the plaintiff, however, defendants No.1 to 5 sold portion of the schedule property to defendants No.6 and 7 as per the registered sale deed dated 24.07.2008 and being aggrieved by the same, the plaintiff has filed suit in O.S.No.60/2009 before the Trial Court, challenging the

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registered sale dated 24.07.2008 executed by defendants No.1 to 5 in favour of defendants No.6 and 7.

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After service of summons, the defendants entered appearance, however, defendants No.1, 6 and 7 have filed written statement and contested the suit. Defendant No.3 has adopted the written statement of defendant No.1. It is the case of defendant No.1 that the schedule properties belong to joint family of plaintiffs and defendants No.1 to 5, however, disputes execution of the registered sale deed in favour of defendants No.6 and 7. Defendants No.6 and 7 have filed written statement and denied the averments made in the plaint. It is the specific case of defendants No.6 and 7 that the plaintiffs have made a false claim against the defendants and denied the execution of the agreement dated 10.02.2004. It is stated that defendants No.6 and 7 had purchased the suit schedule properties as per registered sale deed dated 24.07.2008 based on the revenue records and as such sought for dismissal of the suit.

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The Trial Court based on pleadings on record,

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has formulated issues and additional issues for its consideration.

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In order to establish the case, plaintiffs have examined three witnesses as PW.1 to PW.3 and got marked 45 documents as Exs.P.1 to P.45. On the other

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hand, defendants have examined three witnesses as DW.1 to DW.3 and produced 12 documents as Exs.D.1 to D.12

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The Trial Court, after considering the material on record, by its judgment and decree dated 31.01.2015 dismissed the suit of the plaintiffs and being aggrieved by the same, the plaintiffs have preferred Regular Appeal in R.A.No.59/2015 on the file of First Appellate Court and said appeal was resisted by the defendants. The First Appellate Court after re-appreciating the facts on record, by its judgment and decree dated 31.01.2018 dismissed

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the appeal and confirmed the judgment and decree passed by the Trial Court in O.S.No.60/2009.

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Being aggrieved by the same, the plaintiffs -

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appellants have preferred this Regular Second Appeal under Section 100 of CPC.

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This Court vide order dated 20.11.2023

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formulated the following substantial questions of law:

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“i. Whether the Courts below were justified in coming to the conclusion that there was an oral partition based on the pleadings of defendant Nos.6 & 7 without there being any supporting material or any cogent material that there was an oral partition in the joint family property of the appellants and defendant Nos. 1 to 5?

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ii. Whether the Courts below were justified in dismissing the suit of the plaintiff seeking right of pre-emption being the class-I heirs? &

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iii. Whether the judgment and decree of the Courts below suffers perversity and illegality and warranting interference?”

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I have heard Sri.V.M.Sheelavant, learned

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counsel for appellants No.1(A) and 1(B) and Sri.Mrutyunjaya Tata Bangi, learned counsel appearing for respondents No.6 and 7.

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It is contended by the learned counsel for the appellants that both the Courts below have committed an error in considering the fact that the suit schedule properties are the joint family properties of the parties and the oral partition alleged to have been pleaded by defendants No.6 and 7 has not been proved and that apart the finding recorded by the Trial Court on issue No.2 is incorrect and accordingly sought for interference of this Court. It is the categorical argument of the learned counsel for the appellants that defendants No.6 and 7, though got registered sale deed on 24.07.2008, however, they were not put into possession and therefore the finding recorded by both Courts below requires to be interfered with.

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Nextly, the submission of the learned counsel

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appearing for the appellants that Section 97 of the Limitation Act, 1963 to be imported for answering the question of law and therefore sought for interference of this Court.

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Per contra, learned counsel appearing for respondent No.6 and 7, (defendants No.6 and 7) contended that both the Courts below having taken note of the fact that the agreement dated 10.02.2004 is a sham document and cannot be a basis to grant relief to the plaintiffs and that apart as per Section 97 of the Limitation Act, the suit ought to have been filed within one year from the date of the execution of the registered sale deed dated

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24.07.2008 and therefore, sought to justify the impugned judgment and decree passed by the Courts below.

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In the light of the submissions made by the learned counsel appearing for parties, it is not in dispute that the original propositus Shivagouda Patil died leaving behind the legal representatives namely (Kamalabai – defendant No.1), Shailaja (defendant No.2), Shobha (defendant No.3), Sarojini (defendant No.4), Shashikala (defendant No.5) and late Shashikant (husband of plaintiff No.1A and father of plaintiff No.1B. It is the case of the

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plaintiffs that as per Ex.P.9 agreement dated 10.02.2006 between the plaintiff and defendant No.1, defendant No.1 had preferential right in the event of any alienation in respect of the suit schedule properties.

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Having taken note of finding recorded by the Trial Court on issue No.3, I am of the view that the Trial Court after considering the material on record and taking into consideration the fact that the suit schedule properties are the joint family properties, so also, the share of the parties, rightly negatived the contention of the plaintiffs holding that the plaintiffs have no preferential right insofar as the suit schedule properties are concerned.

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It is also to be noted that there is no partition in the joint family properties and the plaintiffs and defendants No.1 to 5, as per Ex.P.40 gave a report to the revenue authorities to register the names in the suit schedule properties and pursuant to the same registered sale dated 24.07.2008 has been executed by defendant

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No.1 to 5 in favour of defendants No.6 and 7. It is also to

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be noted that Section 97 of the Limitation Act provides for enforcement of right of pre-emption and same has to be made within one year from the date of knowledge or from the date of divesting of the properties in question. Taking into consideration as registered sale deed as per Ex.D.4 was executed on 24.07.2008 and the recitals in the sale deed reveals that the possession of the property has been handed over to defendants No.6 and 7 and the plaintiffs were well aware about the same and as such the suit is filed beyond one year and therefore the suit itself is not maintainable and liable to be rejected on the ground of limitation.

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Taking into consideration the evidence on record where the Ex.P.9 – unregistered document, which does not confer any right in respect of the executants of the document and also taking into consideration defendant No.2 to 5 are also entitled for share in the suit schedule properties, I am of the view that both the Courts below

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