Javaregowda Vs Smt.Karagamma

THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 5.10.2012 PASSED IN R.A.NO.125/2011 ON THE FILE OF THE IV ADDL. DISTRICT JUDGE, MYSORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 29.1.2011 PASSED IN OS.NO.976/2005 ON THE FILE OF THE III ADDL. CIVIL JUDGE (SR.DN) MYSORE.

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

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CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the Appellants challenging the judgment and decree dated 05.10.2012 passed in R.A. No. 125 of 2011 by the learned IV Additional District Judge, Mysore and the judgment and decree dated 29.01.2011 passed in O.S. No. 976 of 2005 by the learned III Additional Civil Judge (Sr. Dn.), Mysore.

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For convenience, the parties are referred to, based on their rankings before the Trial Court. The appellants were the plaintiffs and the respondents were the defendants.

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Brief facts, leading rise to the filing of this appeal, are as follows:

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The plaintiffs filed a suit against the defendants seeking the relief of partition and separate possession. It is the case of the plaintiffs that late Mudukegowda and his wife Smt.Karagammadefendant No. 1 herein, have got three sons, namely 1) Kalegowda, who is the husband of plaintiff No.2 and father of plaintiff Nos.3 and 4; 2) Shivanna, who is the father of defendant Nos.2 and 3; and 3) Javaregowda, plaintiff No.1 herein.

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It is contended that after the death of Late Mudukegowda, the schedule property mutated in the name of defendant No.1. Defendant No.1, taking advantage of the change of khata in her name, colluding with other defendants, created a document styled a sale deed in 2004. The same is created, misconceived and has taken place behind the back of the plaintiffs. It is contended that the suit schedule

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property is the ancestral joint family property of the plaintiffs and the defendants. The plaintiffs requested the defendants to effect a partition. However, the defendants did not give any heed to the request made by the plaintiffs. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession. Accordingly, prays to decree the suit.

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Defendant Nos.2 and 3 filed a consenting written statement contending that the sale deed executed in favour of defendant No.4 is not binding on the plaintiffs and these defendants, and accordingly pray to grant their shares in the suit property.

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Defendant No.5 filed a written statement denying the averments made in the plaint. It is contended that he purchased the property from defendant No.4 after taking all precautionary measures before purchasing the suit property. He is the bona fide purchaser for a value without notice. He has improved the property

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by investing huge money. Accordingly, on these

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grounds, 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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(i) Whether the plaintiffs prove that the schedule property is the joint ancestral property of them and defendant Nos.1 to 3?

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(ii) Whether the plaintiffs prove that the sale deed dated 04.10.2004 is created and fraudulent one?

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(iii) Whether the fifth defendant proves that he is the bona fide purchaser of the suit property from the fourth defendant?

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(iv) Whether the 5^th defendant proves that the court fee paid on the court is insufficient?

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(v) Whether the plaintiffs are entitled for plaint reliefs?

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(vi) What order or decree?

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The plaintiffs to prove their case, plaintiff No.1 was examined as PW1, examined one witness as PW2, and marked 9 documents as Exhibits P1 to P9.

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Conversely, the defendants to prove their defence, examined a witness as DW1 and marked 23 documents as Exhibits D1 to D23.

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The Trial Court, after recording the evidence of the parties, hearing both the sides and appreciating the verbal and documentary evidence, answered issue No.3 in the affirmative and issue Nos.1, 2, 4 and 5 in the negative and issue No.6 as per the final order. The suit of the plaintiffs was dismissed vide judgment dated 29.01.2011.

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The plaintiffs, aggrieved by the judgment and decree passed by the Trial Court preferred an appeal on the file of the learned IV Additional District Judge, Mysore.

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The First Appellate Court, after hearing the learned

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counsel for the parties, framed the following points for consideration:

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(i) Whether the plaintiffs prove that the plaint schedule property is the joint ancestral property of them and defendants 1 to 3?

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(ii) Whether the plaintiffs prove that the sale deed dated 04.10.2004 is fraudulent one?

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(iii) Whether the 5th defendant is the bona fide purchaser of the plaint schedule property for value?

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(iv) Whether the plaintiffs are entitled for the relief of partition and separate possession as prayed?

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(v) Whether the judgment and decree of the Trial Court is erroneous, calling for interference by this court?

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The First Appellate Court, after re-appreciating the verbal and documentary evidence, answered point Nos.1, 2 and 4 in the negative, point No.3 in the

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affirmative and point No. 5 as per the final order. The first appellate court dismissed the appeal vide judgment dated 05.10.2012.

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The plaintiffs, aggrieved by the judgments and decrees passed by the Courts below, have preferred this Regular Second Appeal.

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This Court admitted the appeal on 05.07.2016 to consider the following substantial questions of law :

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(I) Were the Courts below justified in dismissing the suit of the plaintiffs for partition holding that the suit schedule property is not the joint family property ignoring the material document Ex.P4-the sale deed, the recitals of which clearly depict that the suit schedule property is the ancestral joint family property?

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(II) Were the Courts below justified in dismissing the suit of the plaintiffs ignoring the oral and documentary evidence which depicts that the suit

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schedule property is the joint family property?

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(III) Whether the Courts below justified in dismissing the suit of the plaintiffs in the facts and circumstances of the present case ?

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Heard the arguments of the learned counsel for the plaintiffs the learned counsel for defendant No.4.

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Learned counsel for the plaintiffs submits that the suit schedule property is the ancestral joint family property of the plaintiffs and the defendants, and the plaintiffs and the defendants constitute a Hindu joint family. He submits that defendant No.1 executed a sale deed in 2004 in favor of defendant No. 4 behind the back of the plaintiffs and fraudulently. He submits that the sale deed at Exhibit P4 contains a recital depicting the suit property as the ancestral joint family property and the aspect was not adequately considered by the courts below. He submits that the courts below committed an error in

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passing the impugned judgments and were not justified in passing the same. The judgments passed by the Courts below are arbitrary and erroneous and the same are liable to be set aside. Accordingly, on these grounds, prays to allow the appeal.

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Per contra , learned counsel for defendant No.4 submits that pursuant to the sale deed executed by defendant No.1 in favour of defendant No.4, defendant No. 4 has sold the property in favour of defendant No.5. Therefore, he submits that, as of now, the person having interest in the suit schedule property is defendant No.5. He also submits that the plaintiffs have not challenged the sale deed executed by defendant No.1 in favor of defendant No.4. Accordingly, on these grounds, he prays to dismiss the appeal.

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Perused the records and considered the submissions of the learned counsel for the parties.

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Reg. Substantial Questions of law No. 1 to 3:

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These substantial questions of law are interlinked with each other. Hence, they are taken together for common discussion to avoid the repetition of facts.

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The plaintiffs have filed a suit against the defendants for partition and separate possession. It is the case of the plaintiffs that the suit property is the ancestral joint family property of the plaintiffs and the defendants. It is alleged that defendant No.1 executed a sale deed in favour of defendant No.4 behind the back of the plaintiffs fraudulently, the same is created and misconceived.

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The plaintiffs, to prove their case, plaintiff No.1 was examined as PW1 and he reiterated the plaint averments in the examination-in-chief and produced the documents marked as Exhibits P1 to P9.

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Exhibit P1 is the Genealogical Tree;

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Exhibits P2 and P3 are the RTC extracts;

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Exhibit P4 (Exhibit D1) is a copy of the sale deed executed by defendant No.1 in favour of defendant No.4 regarding the suit schedule property;

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Exhibits P5 and 6 are the postal receipts;

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Exhibit P7 is the notice;

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Exhibit P8 is the acknowledgement; and

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Exhibit P9 is a certified copy of the sale deed.

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During the course of cross-examination of PW1, it was suggested to PW1 that his mother is the second wife of Mudukegowda and the said suggestion was denied by PW1. It was also suggested that they have not objected to the change of khata in the name of defendant No.4 regarding the suit property, to which PW1 pleads ignorance. It was also suggested that defendant No.5 is in possession of the suit property currently and the said suggestion was also denied by PW1.

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The plaintiffs examined one Karigowda as PW2, who deposed that the suit property is the ancestral joint

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family property of the plaintiffs and the defendants, the plaintiffs have no other property except the suit schedule property.

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During the course of cross-examination of PW2, it was suggested that Mudukegowda has 3 sons from another wife, and the said suggestion was denied by PW2.

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In rebuttal, the defendants examined the power of attorney holder of defendant No.5 as DW1 who has reiterated the written statement averments in the examination-in-chief and produced the documents marked as Exhibits D1 to D23.

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Ex. D. 1 (EX P 4) is the sale deed dated 04.10.2004 executed by defendant No.1 in favour of defendant No.4;

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Exhibit D2 is the sale deed dated 11.11.2005 executed by defendant No.4 in favour of defendant No.5;

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Exhibit D3 is the power of attorney;

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Exhibits D4 to D9 are the RTC extracts;

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Exhibit D10 is a certified copy of the mutation register extract, by virtue of which the property came to defendant No.1;

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Exhibit D11 is the endorsement issued by the Tahsildar;

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Exhibit D12 is the copy of “Star of Mysore” Newspaper; Exhibit D12(a) is a notice published in Exhibit D12;

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Exhibit D13 is the Mysore Mithra Newspaper; Exhibit D13(a) is a notice published in Exhibit D13;

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Exhibit D14 is an encumbrance certificate;

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Exhibits D15 and 16 are the mutation register extracts;

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Exhibits D17 and 18 are the RTC extracts;

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Exhibit D19 is the letter issued by MUDA;

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Exhibit D20 is the challan dated 31.01.2007;

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Exhibit D21 is the Mysore Mithra Newspaper, and Exhibit D21(a) is a public notice issued therein;

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Exhibit D22 is a letter issued by MUDA dated 02.07.2008; and

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Exhibit D23 is the proceedings of Deputy commissioner.

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During the course of cross-examination of DW1, a question was put to DW1 as to, from whom did defendant No. 4 purchase the suit property, to which he states he is not aware of it.

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From the perusal of entire evidence of record, it is undisputed that the suit schedule property stood in the name of defendant No.1 as per the entries in Exhibit D10 i.e., the mutation register extract.

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A perusal of Exhibit D10 discloses that defendant No.1's name was mutated in respect of the suit property in the capacity of her being the second wife of Late Mudukegowda. Further, a perusal of Exhibit D1 (Exhibit P4) discloses that it is the sale deed dated 04.10.2004 executed by defendant No.1 in favour of defendant No.4 and a perusal of Exhibit D2 discloses that it is the sale deed dated 11.11.2005

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executed by defendant No.4 in favour of Defendant No.5.

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Admittedly, in a suit for partition and separate possession, the initial burden is always on the plaintiffs to prove that the suit schedule property is the ancestral, joint family property; but after the discharge of the initial burden, it shifts on the defendants. In the case on hand, although it is the contention of the plaintiffs that the sale deed at Exhibit P4 contains a recital depicting that the suit property is the ancestral joint family property, however, the plaintiffs have produced no documents showing that suit property stood in the name of late Mudukegowda. Also, the plaintiffs have not produced any documents to show as to how the suit property came to the hands of late Mudukegowda. Although the plaintiffs plead in the plaint that the suit property came to defendant No.1 by virtue of IMR No.18/9899, the same is not produced by them.

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However, it is pertinent to note that, as on the date

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of filing the suit, defendant No.4 had no interest whatsoever over the suit schedule property, since he had sold the same in favour of defendant No.5. The interested person so far as the suit property is concerned is defendant No.5.

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Furthermore, a perusal of plaint averments reveal that the plaintiffs have sought a partition and separate possession, but on a careful perusal, it discloses that the plaintiffs have not challenged the sale deed executed by defendant No.1 in favour of defendant No.4 as per Exhibit D1. The plaintiffs claiming to have a share in the suit schedule property ought to have challenged the sale deed executed by defendant No.1 in favour of defendant No.4 and the sale deed executed by defendant No.4 in favour of defendant No.5.

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Merely because there is a recital in the registered sale deed regarding nature of the suit property in

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Exhibit P4, it does not prove that it is an ancestral property. To corroborate the said fact, the plaintiffs have not produced any documents regarding the nature of the suit schedule property. Further, the plaintiffs have not confronted the portion of recital in Exhibit P4 to DW1.

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The Trial Court, considering the evidence on record, has rightly recorded a finding of fact that the suit schedule property is not the ancestral joint family property of the plaintiffs and defendant Nos.1 to 3 and that the plaintiffs have not proved that the sale deed dated 04.10.2004 is created and fraudulent.

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Further, the First Appellate Court, after reappreciating the entire evidence on record, has rightly recorded a finding of fact that the suit schedule property is not the ancestral joint family property of the parties and that the plaintiffs have failed to prove that the sale deed dated 04.10.2004 is fraudulent one.

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Both the Courts below, considering the fact that the plaintiffs have filed a suit without challenging the previous sale deeds, have rightly passed the judgments and were justified in passing the same.

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