Jade Muniyappa Vs Smt Gowramma

THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 14.9.2012 PASSED IN R.A.NO.19/2012 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT-III, BANGALORE RURAL DISTRICT, BANGALORE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 22.10.2011 PASSED IN OS.NO.259/2006 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, DODDABALLAPURA.

¶28

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

¶29

CORAM: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE

¶30

3 -

¶31

NC: 2025:KHC:19472 RSA No. 2343 of 2012

¶32

HC-KAR

¶33

ORAL JUDGMENT

¶34

This Second Appeal is admitted on 25.09.2021 to consider the following substantial question of law:-

¶35

"Whether the First Appellate Court is justified in evaluating the registered sale deed dated 29.07.2006?"

¶36

After considering the submissions made by the

¶37

learned counsel for the appellants as well as the learned counsel for the respondent No.4, this Court is of the view that one more substantial question of law is required to be framed and accordingly, framed as under:

¶38

"Whether the share awarded by the First Appellate Court is in accordance with law?"

¶39

This is the plaintiffs' second appeal against the divergent finding. Suit in O.S. No.259/2006 is filed on the file of Senior Civil Judge, Doddaballapur. The plaintiffs sought declaration that sale deed dated 29.07.2006 executed by defendants No.1 to 3 in favour of 4^th

¶40

4 - NC: 2025:KHC:19472 RSA No. 2343 of 2012

¶41

HC-KAR

¶42

defendant in respect of suit 'B' schedule property is null and void and not binding on the plaintiffs and same is contrary to the judgment and decree passed in O.S. No.67/1999. The plaintiffs also sought consequential relief of permanent injunction. Apart from suit 'B' schedule

¶43

property, the plaintiffs have also described the suit 'A' schedule property which is property bearing Survey No.88, measuring 1 acre 9 guntas situated at Raghunathapura Village, Doddaballapur Taluk. The suit 'B' schedule property is survey No.88, measuring 24 guntas in the same village and taluk.

¶44

The admitted factual position is a suit in O.S.

¶45

No.67/1999 was filed before the Principal Civil Judge (Junior Division), at Doddaballapur. The said suit is filed by defendants No.1 to 3 in O.S. No.259/2006 and said suit was for partition and separate possession. The suit is decreed holding that sale deed dated 29.07.2006 executed by defendants No.1 and 2 in favour of defendant No.4 in respect of 'B' schedule property is null and void and does

¶46

5 - NC: 2025:KHC:19472 RSA No. 2343 of 2012

¶47

HC-KAR

¶48

not bind the plaintiffs. Injunction is also granted against defendant No.4.

¶49

The appeal the first appellate court in RA. No.19/2012 allowed the appeal and consequently dismissed the suit holding that sale deed dated 29.07.2006 executed by defendants No.1 and 3 in favour of defendant No.4 is valid to the extent of 16 guntas in 'B' schedule property.

¶50

In the earlier suit, in O.S.No.67/1999, the Court had declared that plaintiffs No.2 and 3 namely Venkatesh and Muniraju together are entitled to 1/6^th share in Sy.No.88 measuring 1 acres 9 guntas in Ranganathapura, item no.3 house No.855/3545/3 in Mathur village.

¶51

It is submitted that the share declared in the

¶52

said suit on account of typographical error. Learned counsel for the parties to the proceedings jointly submit that in the said decree each plaintiffs No.2 and 3 is entitled to 1/6^th share. Thus, this Court has proceeded to

¶53

6 - NC: 2025:KHC:19472 RSA No. 2343 of 2012

¶54

HC-KAR

¶55

decide the present appeal by treating that each plaintiffs No.2 and 3 to the suit in O.S.No.67/1999 is allotted 1/6^th share in the said suit.

¶56

In terms of the said decree, plaintiffs No.2 and 3 in the said suit are entitled to 1/6^th share each. However, decree holders sold the property measuring 24 guntas in favour of 4^th defendant in O.S. No.259/2006 under registered sale deed dated 29.07.2006.

¶57

Thus, plaintiffs have filed a suit contending that the vendors did not possess the title and possession to execute a sale deed in respect of 24 guntas. The said suit was contested by defendants No.4 and 5 the purchaser as well as defendant No.5 the father of defendants No.2 and 3. The Trial Court decreed the suit. Entire sale transaction is set-aside on the premise that final decree is not yet drawn.

¶58

Aggrieved by the aforementioned judgment and decree, defendant No.4 filed an appeal in R.A. No.19/2012

¶59

7 - NC: 2025:KHC:19472 RSA No. 2343 of 2012

¶60

HC-KAR

¶61

on the file of Fast Track Court-III, Bengaluru Rural District, Bengaluru. First Appellate Court set-aside the judgment and decree passed by the Trial Court by allowing the appeal and consequently, held that the sale deed is valid to the extent of 16 guntas and partly decreed the suit. Aggrieved by the aforementioned judgment and decree, the plaintiffs are before this Court.

¶62

Learned counsel for the appellants would submit that First Appellate Court could not have allowed the appeal in favour of the purchaser who purchased undivided share and unless and until the share of the vendors is determined and demarcated, the purchasers cannot claim to be in possession of the properties. It is her contention that the purchaser either has to file a petition seeking final decree or has to seek share in the final decree proceeding initiated by the plaintiffs and without any such demarcation of property in favour of purchaser, the purchaser is not entitled to any relief and

¶63

8 -

¶64

NC: 2025:KHC:19472 RSA No. 2343 of 2012

¶65

HC-KAR

¶66

the First Appellate Court could not have set-aside the judgment and decree passed by the Trial Court.

¶67

Learned counsel for respondent No.4-purchaser on the other hand would submit that the vendors have executed a sale deed in respect of specific survey number mentioning specific extent and the First Appellate Court is justified in allowing the appeal.

¶68

This Court has considered the contentions

¶69

raised at the bar and perused the records.

¶70

As can be seen from the decree passed by the First Appellate Court, the appeal is allowed and consequently, the suit is dismissed holding that the sale deed is valid to the extent of 16 guntas in 'B' Schedule Property. Admitted factual position is the defendant No.4 has purchased undivided share from defendants No.2 and 3. The vendors of defendant No.4 namely defendants No.2 and 3 have not filed final decree proceeding and their share was not demarcated.

¶71

9 -

¶72

NC: 2025:KHC:19472 RSA No. 2343 of 2012

¶73

HC-KAR

¶74

In the earlier suit, defendants No.2 and 3 who

¶75

are the vendors of defendant No.4 were held entitled to 1/6^th share each. Defendant No.4 will acquire title only in respect of the share held by his vendors.

¶76

This being the position, defendant No.4 who is not a member of the family was required to file a suit for partition and separate possession of the share which was purchased from defendants No.2 and 3. That course is not adopted.

¶77

However, what is required to be noticed is that the suit is filed challenging the validity of the sale deed in respect of undivided share purchased by defendant No.4. Merely because the property is sold before final decree proceedings is initiated, that does not mean the sale deed is invalid. The First Appellate Court could have granted a decree for partition in respect of share belonging to the plaintiffs in O.S. No.259/2006 by declaring the share of

¶78

10 - NC: 2025:KHC:19472 RSA No. 2343 of 2012

¶79

HC-KAR

¶80

vendors of defendant No.4 which was already decided in the earlier suit in O.S.No.67/1999.

¶81

As already declared in O.S.No.67/1999, each defendants No.2 and 3 will have 1/6^th share in the property sold by them. Thus, the purchaser - defendant No.4 will acquire the share of the vendors viz., defendants No.2 and 3. The purchaser instead of filing a fresh suit for partition and separate possession is entitled to initiate a Final Decree Proceeding for partition and separate possession of the share of his vendors viz., defendants No.2 and 3.

¶82

Hence, the following:

¶83

ORDER

¶84

(i) The judgment and decree dated 14.09.2012 in R.A. No.19/2012 on the file of the Presiding Officer, Fast Track CourtIII, Bangalore Rural District, Bangalore are set-aside.

¶85

11 -

¶86

NC: 2025:KHC:19472 RSA No. 2343 of 2012

¶87

HC-KAR

¶88

(ii) The judgment and decree dated 22.10.2011 in O.S. No.259/2006 on the filed of Senior Civil Judge, Doddaballapur are set-aside.

¶89

(iii) Defendant No.4 is entitled to initiate a Final Decree Proceeding for partition and separate possession of 1/6^th share of each of defendants No.2 and 3- his vendors under the registered sale deed dated 29.07.2006.

¶90

(iv) In the said Final Decree Proceeding, remaining parties are also entitled to make a claim for partition and separate possession of their respective share.

¶91

Sd/(ANANT RAMANATH HEGDE) JUDGE

¶92

CHS List No.: 1 Sl No.: 45

Jade Muniyappa v. Smt Gowramma

Case brief

What is this about?

What did the court decide?

Jade Muniyappa v. Smt Gowramma

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Sri Banappa S/O Pandith Lakshmaiah Vs Sri D Thimmapaiah S/O Late Dasappa

Sri Lakshmana Vs Sri a Ramaiah

Chandrappa S/O Late Dasthimmaiah Vs Lingaiah S/O Dasthimmaiah

M/S Scorpio Engineering (P) Ltd. Vs the Regional Provident Fund Commissioner

Central Board of Trustees Epf Vs M/S Konega International (P) Limited

Town Municipal Corporation Vs Shri. Veeraiah S