The High Court
Case Details
- 1 - NC: 2025:KHC:20737 RSA No. 1290 of 2022 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.1290 OF 2022 (PAR) BETWEEN: 1. SRI. NARAYANA, S/O VENKATAPPA, AGED ABOUT 37 YEARS, HOUSE NO.30, GOVERNMENT UTTANHALLI VILLAGE, VARUNA HOBLI, MYSURU TALUK AND DISTRICT-571311. (BY SRI. ARAVIND BABU J., ADVOCATE) …APPELLANT Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA AND: 1. SMT. GOWRAMMA, W/O LATE JAVAREGOWDA, AGED ABOUT 65 YEARS. 2. SMT. MAHADEVI, D/O LATE JAVAREGOWDA, AGED ABOUT 42 YEARS. 3. SMT. LAKSHMI, W/O LATE KRISHNA, S/O LATE JAVAREGOWDA, AGED ABOUT 40 YEARS. 4. MISS. GEETHA, D/O LATE JAVAREGOWDA, AGED ABOUT 39 YEARS. - 2 - NC: 2025:KHC:20737 RSA No. 1290 of 2022 HC-KAR
Legal Reasoning
as there is no dispute that the property belongs to the father of the plaintiff and hence comes to the conclusion that the said documents will not come to the aid of the plaintiff. Apart from that, the Appellate Court also taken note of the sale deed is executed by all his family members and they have not challenged the said sale deed. The First Appellate Court also observed that the latest RTC shows that the property is acquired by the BDA and the plaintiff has not challenged the revenue entries in the name of defendant No.10 and comes to the conclusion that when the sale was made in the year 2006, the plaintiff was major at the time of sale and for a period of 9 years, he did not challenge the said sale deed and belatedly filed the suit for the relief of partition and separate possession and re-assessed the material and dismissed the appeal. 11. Having considered the grounds urged in the second appeal and also the substantial questions of law suggested by the learned counsel for the appellant, the material on record is clear that the property was sold in the year 2006 and immediately the plaintiff has attained majority and he had not challenged the sale for a period of 9 years and the suit is filed in 2015. Apart from that, in order to prove - 12 - NC: 2025:KHC:20737 RSA No. 1290 of 2022 HC-KAR the factum that he is in possession of the property along with his family members i.e., joint possession, nothing is placed on record. Both the Courts have taken note of the material available on record regarding possession is concerned and when the possession was not with the plaintiff, filing of the suit belatedly is also considered. When such being the case, both the Courts have considered the question of fact and question of law. Hence, I do not find any ground to admit the appeal and frame substantial question of law as contended by the learned counsel for the appellant. 12. In view of the discussions made above, I pass the following:
Arguments
5. SRI. CHANDRU, S/O LATE JAVAREGOWDA, AGED ABOUT 38 YEARS. 6. VENKATAPPA, S/O JAVAREGOWDA, AGED ABOUT 65 YEARS. 7. SMT. GAYATHRI, W/O VENKATAPPA, AGED ABOUT 62 YEARS. 8. SRI. GOVINDA, W/O VENKATAPPA, AGED ABOUT 42 YEARS. 9. NAGAMMA, D/O VENKATAPPA, AGED ABOUT 39 YEARS. RESPONDENTS NO.1 TO 9 ARE ALL R/AT SARKARI UTTANAHALLI VILLAGE, VARUNA HOBLI, MYSURU TALUK, MYSURU DISTRICT–571311. 10. SMT. BATTEPATI SUSHEELA DEVI, W/O CHITTIBABU, MAJOR BY AGE, R/AT NO.9-14-4, CBM COMPOUND, VISHAKAPATNAM, ANDHRA PRADESH STATE-530001. …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 25.02.2021 PASSED IN R.A.NO.409/2019 ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND IN O.S.NO.929/2015 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSURU. 09.07.2019 DECREE PASSED DATED - 3 - NC: 2025:KHC:20737 RSA No. 1290 of 2022 HC-KAR THIS APPEAL COMING ON FOR ORDERS THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT This appeal is listed for consideration of I.A.No.1/2022 for condonation of delay of 69 days in filing the appeal and considered the same for admission after hearing the appellant’s counsel. 2. This appeal is filed against the concurrent finding of the First Appellate Court. 3. The factual matrix of the case of the plaintiff while seeking the relief of partition and separate possession is that the suit schedule property is the ancestral joint family property of the plaintiff and defendant Nos.1 to 9. They are in joint possession and enjoyment of the suit schedule property. One Mugegowda, the grandfather of the plaintiff had got two sons by name Javaregowda and Venkatappa. The said Javaregowda was dead. The defendant No.1 is the wife of Javaregowda, defendant Nos.2, 4 and 5 are the children of Javaregowda and defendant No.3 is the daughter- in-law of Javaregowda. The plaintiff is the son of defendant - 4 - NC: 2025:KHC:20737 RSA No. 1290 of 2022 HC-KAR No.6 Venkatappa, who is the husband of defendant No.7 and father of defendant Nos.8 and 9. During his lifetime, the said Mugegowda was looking after all the family affairs. After the death of Mugegowda, his sons Javaregowda and Venkatappa were looking after the suit schedule property. The plaintiff is having equal share over the suit schedule property, which was within the knowledge of the plaintiff’s father, mother, sister and brothers. But inspite of that, the defendants colluding with each other have executed a sale deed in favour of defendant No.10. Even though the plaintiff had attained the age of majority, but the plaintiff was shown as minor in the sale deed. The said sale deed came to the knowledge of plaintiff when he obtained the RTC from the concerned authority. On 21.08.2015, he obtained the sale deed and approached his father and enquired about the sale deed. But the defendants gave evasive answer and refused to partition the suit schedule property. Hence, he filed the suit that the sale deed dated 03.03.2006 is not binding on him, which was obtained by playing fraud. 4. In pursuance of the suit summons, defendant No.1 to 9 did not choose to contest the matter. The - 5 - NC: 2025:KHC:20737 RSA No. 1290 of 2022 HC-KAR defendant No.10 appeared through his advocate and filed the written statement contending that he is a bonafide purchaser of the suit schedule property. It is contended that the plaintiff was minor at the time of the execution of the said sale deed. Hence, the plaintiff’s father as a guardian executed the sale deed. At the time of purchase he enquired about the minority of the present plaintiff. The sale deed was executed on 03.03.2006. But this suit was filed in the year 2015. Hence, the suit is barred by limitation. 5. The Trial Court taking into note of the pleadings of the parties, framed the issues with regard to whether the plaintiff proves that he is having share over the suit schedule property, whether defendant No.10 proves that he was a bonafide purchaser of the suit schedule property for valuable consideration and whether the plaintiff is entitled for the relief as sought in the suit. The plaintiff examined himself as P.W.1 and got marked the documents at Exs.P.1 to 9. The defendant No.10 though filed the written statement, he did not choose to adduce evidence. The Trial Court having considered the material available on record, comes to the conclusion that the property is not the joint family property - 6 - NC: 2025:KHC:20737 RSA No. 1290 of 2022 HC-KAR and the plaintiff is not having any share in the suit schedule property and dismissed the suit. The Trial Court also observed that in order to prove the fact that the plaintiff is having right over the suit schedule property and the property is ancestral joint family property and property belongs to the grandfather Mugegowda, nothing is placed on record, except the RTCs at Ex.P.2 to 4 and mutation register extract Ex.P.5. 6. Being aggrieved by the said order, an appeal is filed in R.A.No.409/2019. The First Appellate Court taken note of the application filed under Order 41 Rule 27 of CPC, since the plaintiff had produced some documents. The First Appellate Court framed the points for consideration with regard to whether the plaintiff is in joint possession and enjoyment of the suit schedule property as contended in the plaint and whether the finding of the Trial Court is against the material on record, whether the finding of the Trial Court that the suit schedule property is already divided between Javaregowda and Venkatappa is contrary to the facts and circumstances of the case and the evidence on record, whether the finding of the Trial Court that the suit of the plaintiff is barred by limitation. The First Appellate Court - 7 - NC: 2025:KHC:20737 RSA No. 1290 of 2022 HC-KAR having re-assessed the material available on record, answered issue Nos.1 to 5 and 7 in the negative in coming to the conclusion that the documents, which have been produced along with Order 41 Rule 27 of CPC are not in respect of deciding the issue involved between the parties and not required and also the finding of the Trial Court is not against the material on record. The First Appellate Court also comes to the conclusion that defendant No.10 has proved that he is a bonafide purchaser of the property and dismissed the appeal. 7. Being aggrieved by the said order, the present second appeal is filed before this Court along with the delay application. 8. The main contention of the learned counsel for the appellant before this Court is that both the Courts have committed an error in not considering the material available on record. The observation of the First Appellate Judge in paragraph No.21 that the Trial Court has held that the plaintiff is not in possession of the property and further the plaintiff has not questioned the entries in the revenue record, is erroneous, since the appellant has approached the First - 8 - NC: 2025:KHC:20737 RSA No. 1290 of 2022 HC-KAR Appellate Court challenging the observation made by the Trial Court. The learned counsel would contend that the First Appellate Court ought not to have made such an observation. Hence, prayed this Court to frame the substantial question of law whether both the Courts have committed an error in coming to the conclusion that defendant No.10 is a bonafide purchaser for valuable consideration and also the suit was not filed within time even though he had attained majority and also to frame substantial question of law with regard to rejection of the application filed under Order 41 Rule 27 of CPC. 9. Having heard the learned counsel for the appellant and the reasoning of the Trial Court, when the suit is filed for the relief of partition and when the claim is made that the suit schedule property is the ancestral property, nothing is placed on record before the Trial Court, except producing the RTCs at Exs.P.2 to 4, to come to the conclusion that the plaintiff is having share over the property. The Trial Court taken note of the fact that Ex.P.1 is the genealogical tree and as per Ex.P.1, one Mugegowda is having two sons by name Javaregowda and Venkatappa. The plaintiff who is the son of Venkatappa - 9 - NC: 2025:KHC:20737 RSA No. 1290 of 2022 HC-KAR filed the suit claiming share in the share of his father and an observation is made that there is no dispute regarding relationship of the plaintiff with defendant Nos.1 to 9. Hence, it is not necessary to discuss much about relationship of the plaintiff with defendant Nos.1 to 9. However, the Trial Court taken note of the contention of P.W.1 that the suit schedule property is the ancestral and joint family property of himself and defendant No.1 to 9. Originally the said property belongs to his grandfather Mugegowda. After the death of Mugegoweda, his two sons Javaregowda and Venkatappa inherited the suit property. P.W.1 has produced the RTC, which is marked as Ex.P.2. As per Ex.P.2, Sy.No.24/1 measuring 32 guntas jointly stands in the name of Javaraiah and Venkatappa, who are the sons of Mugegowda. But the names of those persons was entered on the basis of inheritance as per IHR No.24/1987-88. The Trial Court also taken note of that as per Ex.P.3, the RTC of the said survey number was standing in the name of Venkatappa to an extent of 16 guntas and remaining 16 guntas standing in the name of Javaregowda. The Trial Court also discussed in respect of Ex.P.4 in paragraph No.13 and discussed in paragraph No.14 that it is the contention of the plaintiff that he was major at - 10 - NC: 2025:KHC:20737 RSA No. 1290 of 2022 HC-KAR the time of execution of the sale deed on 03.03.2006. To prove his majority, P.W.1 has produced his school certificate, which is marked as Ex.P.7. As per Ex.P.7, the date of birth of the plaintiff is shown as 26.03.1986. But the sale deed was executed on 03.03.2006. So as per the plaintiff as on the date of sale deed, he was major. If that is the case, he should have questioned the said sale deed within three years from the date of execution of the sale deed. But the plaintiff filed this suit in the year 2015 by mentioning that he came to know about the sale deed only on 21.08.2015. The Trial Court in paragraph No.15 taken note of with regard to the pleading of joint possession and comes to the conclusion that when the sale deed was made, they parted with possession and the very contention of the plaintiff that he came to know about it in the year 2015, is not accepted and a detailed reasoning is given by the Trial Court. 10. The Appellate Court also taken note of both oral and documentary evidence available on record and in paragraph No.23 discussed with regard to the additional document placed on record is only in respect of RTC for the year 1975-76 to 1984-85 and this document will not material - 11 - NC: 2025:KHC:20737 RSA No. 1290 of 2022 HC-KAR
Decision
ORDER The appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE MD List No.: 1 Sl No.: 42